HL Deb 19 April 1975 vol 360 cc1122-30

1. The provisions of this Schedule apply where a person (in this Schedule referred to as "the claimant ") gives to the Board notice of a retained interest as mentioned in section 3(3)(b) of this Act (in this Schedule referred to as a "retained interest notice ").

2.—(1) Together with a retained interest notice given by him to the Board the claimant shall furnish to the Board adequate proof of his title to the interest at the time the notice is given.

(2) Within the period of three months beginning on the date on which the Board receive a retained interest notice or within such longer period as may be agreed between the Board and the claimant the Board shall serve on the claimant either—

  1. (a) a notice in the prescribed form accepting his title to the retained interest and acknowledging the obligation of the Board to pay compensation in respect of it under section 3 of this Act; or
  2. (b) a notice rejecting the claimant's retained interest notice;
and in this Schedule a notice under paragraph (a) above is referred to as an "acceptance notice" and a notice under paragraph (b) above is referred to as a "rejection notice ".

(3) A rejection notice shall specify the ground or grounds on which the Board reject the claimant's retained interest notice.

3. Subject to paragraph 5 below, as soon as practicable after the Board have served an acceptance notice on a claimant, the Board shall pay to the claimant any reasonable legal expenses incurred by him for the purposes of

  1. (a) establishing his ownership of the retained interest to which the acceptance notice relates; and
  2. 1123
  3. (b) giving the retained interest notice by virtue of which the acceptance notice came to be served.

4. Subject to paragraph 5 below, where, after the receipt of a retained interest notice, the Board have served an acceptance notice in respect of the retained interest concerned. the service of that acceptance notice shall be a valid ground for the service of a rejection notice in respect of any other retained interest notice received by the Board after the first-mentioned notice and relating to any of the land in which subsists the retained interest in respect of which the acceptance notice was served.

5.—(1) A claimant who—

  1. (a) has served a retained interest notice relating to any land (in this paragraph refer, red to as the relevant land"), and
  2. (b) is aggrieved by the service on him of a rejection notice relating to his retained interest notice, other than a rejection notice served pursuant to an order under this paragraph,
may, within the period of 3 months beginning on the date of service of the rejection notice make an application to the county court for an order directing the Board to withdraw the rejection notice and to serve an acceptance notice in respect of the retained interest which he claims.

(2) On an application under this paragraph. the court may direct that, in addition to the applicant and the Board, any other person who has given a retained interest notice relating to the whole or part of any of the relevant land shall be made a party to the application unless—

  1. (a) the Board have already served a rejection notice in respect of that person's retained interest notice; and
  2. (b) the time within which he might have made an application under this paragraph in respect of that rejection notice has expired without such an application having been made.

(3) On an application under this paragraph the court shall determine whether—

  1. (a) the applicant, or
  2. (b) any other party to the application who contests the applicant's claim, or
  3. (c) any other person (whether a party to the application or not) on whom the Board have served an acceptance notice relating to the whole or any part of the relevant land,
was at the time he gave his retained interest notice entitled to a retained interest in the whole or any part of the relevant land and shall order the Board (so far as they have not aready done so) to serve an acceptance notice on that person or, if more than one of them were so entitled to a retained interest in the same piece of land, on that one of them whose retained interest notice was given first.

(4) An order under sub-paragraph (3) above may contain such provisions as the court consider appropriate to secure—

  1. (a) that a rejection notice is or has been served on every party to the application (other than the Board) on whom an acceptance notice is not ordered to be or has not been served; and
  2. (b) that, where it appears to the court that an acceptance notice has been served which should not have been served, that notice is cancelled and that the Board bring the cancellation to the notice of the person who, if the notice had not been cancelled, would for the time being have been entitled to receive compensation under section 3(4) of this Act in respect of the interest to which the acceptance notice related.

(5) If, in accordance with sub-paragraph (4) above, the court orders the cancellation of an acceptance notice, it shall be conclusively presumed for the purposes of section 3 of this Act and of the provisions of this Schedule other than this paragraph—

  1. (a) that the person on whom the acceptance notice was served did not have a retained interest in the relevant land at the time he served his retained interest notice; and
  2. (b) that the Board served a rejection notice in respect of that retained interest notice.

(6) Nothing in paragraph 3 above shall affect the power of the court on an application under this paragraph (or in any subsequent proceedings) to make such order as to costs as it thinks fit; and any such order may make such modifications, if any, of the Board's obligation under paragraph 3 above as appear to the court to be just in the light of the other provisions as to costs contained in the order.

6. The person having the right to receive compensation under section 3(4) of this Act in respect of a retained interest to which an acceptance notice relates shall be the person on whom that notice was served, notwithstanding that he may not own the retained interest at the time when the compensation becomes payable and, accordingly, that right shall devolve on his death and may be assigned in like manner as the right of a creditor under an unsecured debt.

7. Notwithstanding anything in paragraph 6 above, if, at the time at which compensation becomes payable in respect of a retained interest, the Board pay compensation in good faith to the person who produces the acceptance notice relating to that interest, the surrender of that notice to the Board by way of receipt for the compensation shall constitute an adequate discharge to the Board of their liability to pay that compensation, without any further proof that the person producing the acceptance notice is entitled in accordance with paragraph 6 above to receive the compensation.

8. If at any time—

  1. (a) after the Board have served an acceptance notice in respect of a retained interest, and
  2. (b) before the date on which compensation becomes payable in respect of that interest, 1125 the Board enter into an agreement in that behalf with the person who for the time being has the right to receive any such compensation, then, on payment to that person of such consideration as may be agreed, the Board shall be relieved of any contingent liability under subsection (4) or subsection (6) of section 3 of this Act in respect of that retained interest; and where any such agreement is entered into, paragraph 7 above shall apply in relation to the payment of the consideration agreed as it applies in relation to a payment of compensation at the time referred to in that paragraph.

9. Without prejudice to paragraph 8 above, at any time after the Board have served an acceptance notice in respect of a retained interest, they shall cease to be entitled to acquire by agreement that interest or any other retained interest in coal or a mine of coal comprised in or lying under any of the land in which subsists the retained interest to which the acceptance notice relates.

10.—(1) The Board shall keep, at such places as may be prescribed, a record of—

  1. (a) all retained interest notices given to the Board and all acceptance notices and rejection notices served by them, and
  2. (b) all sums paid by way of compensation under section 3(4) of this Act,
and that record shall contain a description of the land in which subsists the retained interest for in the case of a rejection notice, the claimed retained interest) to which each such notice or payment relates sufficient to enable the land to be identified.

(2) The record kept under this paragraph shall he open to public inspection at all reasonable hours, and different places may be prescribed for the keeping of the record relating to retained interests in different areas.

11. Section 55 of the Coal Act 1938 (service of notices, etc.) shall have effect as if the provisions of his Schedule were included in that Act.").—(Lord Lovell-Davis.)

On Question, Amendment agreed to.

Schedule 2 agreed to.

Schedule 3 [Suspension of public rights of way; Amendments of Schedule 1 to Opencast Coal Act 1958]

8.8 p.m.

Lord BEAUMONT of WHITLEY moved Amendment No. 23:

Page 20, line 12, leave out (" or district") and insert (" district, parish or community ").

The noble Lord said: The object of this Amendment is to add district, parish and community councils to the list of those councils who can, by lodging a formal objection, force a public inquiry into the proposed suspension of a public right of way. This Amendment would in fact bring the National Coal Board into line with all others of any standing who wish to impair rights of way, for whatever good reason, under the Highways Act 1959, where any local council by lodging an objection can automatically cause a public inquiry to be held. My main object in raising this Amendment is that I see no reason why the Coal Board. however good it is in practice, should be treated differently under the law in this matter. I am well aware that it was treated differently under the last law dealing with this particular matter, but I think it is right that it should be brought into line with the building industry or any of the other people who are from time to time forced to ask for closures of rights of way.

I will not go into the theoretical motivations behind this Amendment, because I know your Lordships would agree with them. This is no time to be lessening the protection of the environment. It is no time to be lessening local democracy and the effect that people have over their own lives where they live. I know noble Lords on all sides of the Committee would agree with that. If anything, we want to be increasing our protection of the environment, and increasing the power of small bodies to control what happens in their areas. When the noble Lord comes to answer, may I just say in advance that I do not think it is sufficient to say that the National Coal Board always behaves extremely well, and that the Minister always pays great attention to the objections of small local councils. I am sure that both of these are accurate statements, but it seems to me that we must establish rights before the law, and that proper reasons should be given why this Amendment, even if it may be said to be unnecessary, would in some way be a bad thing. I believe that there certainly ought to be a statutory right to a local inquiry. Therefore, I beg to move the Amendment.

Viscount LONG

Before the noble Lord replies, may I just say that I agree with the noble Lord's Amendment. There is a feeling about that when these footpaths are destroyed no plans are ever made. Plans ought to be made of these footpaths, and that goes also for tunnels, mines, and so on, so that people may know what is happening. To deposit them with the parish councils or the county councils is a safe measure and it is a good place to put them; otherwise how are people going to know in the future where these mines or footpaths were? I think that the noble Lord's Amendment is quite a good one if it is not going to cost the National Coal Board or the Government a great deal.

8.11 p.m.


This is an extremely important Amendment, and despite the late hour I think that I ought to reply somewhat in detail, with the permission of the Committee. Under the existing procedure for the suspension of footpaths there is the anomaly that any objector, no matter how remote or flimsy his interest, can force a public inquiry. There is the much more important matter of authorising the site of opencast working to which only district and county councils can make objections. That is to say, the Amendment would now introduce a procedure whereby opencast working could be authorised against the wishes of the parish council, but a footpath could not be diverted without the approval of the parish council.

It is true that the present procedure has not resulted in a great number of inquiries, again a proof that on the whole the Coal Board has behaved decently. The significant new factor is that the Coal Board would have formally to notify parish councils to close a footpath. These formal notifications would thus be put on the agenda of the parish council, and since no one is likely to be in favour of an opencast mine in his neighbourhood obviously there will be some protesters. If we are then giving them the right of objecting—and parish councils have a tendency not to be always fully representative—we get ourselves into a situation in which absurdities will arise.

In another place the Liberal Member on the Commons Committee put down a similar Amendment to this one. In support he argued that it was wrong to differentiate between district and county councils, on the one hand, and parish councils, some of which, as he rightly said. represented big and important towns on the other. Unfortunately very many represent areas of small population, have little financial strength, and are perhaps served by only one part-time official. Without in any way denying that they are important in local affairs they are undoubtedly different from even small district councils. So any general provision that they must be, as of right, treated exactly like district councils is not common sense. Moreover, where in these opencast cases a footpath has been suspended an alternative way has to be provided, unless it is absolutely unnecessary, and the original right of way must be restored when the opencast mining area is restored. As the noble Baroness who has now left us said, the safeguards in regard to opencast mining have been strengthened, not weakened, by this Bill—indeed they have been strongly reinforced. Moreover, this is a very different matter from the closure of a way for all time, perhaps without an alternative being provided. In other words, this is a completely special case. It has no parallel so far as footpaths are concerned, but, of course, there is no compensating advantage for the locality.

Very often footpaths are closed because new housing estates are built and therefore the community and its immediate representatives, the parish council, obtain an advantage from the closing of the footpath. Nobody can pretend that an opencast mine is something which benefits the immediate neighbourhood, while of course it is essential for the nation as a whole. Therefore I think that the arguments which the noble Lord so persuasively put forward are not altogether as persuasive as they look at first sight. Full assurances have been given that wherever any objector—and that certainly includes parish or community councils—is not willing to have his objection dealt with by written representation, then the Secretary of State will not dispense with a public inquiry without first consulting the Secretary of State for the Environment, whose Department is the guardian of the public interest in these matters.

Further assurance has been given that each application for suspension of a footpath will be personally seen by the Minister. Moreover, there can be no question of a big Whitehall Department insensitive to local issues driving a steamroller over the objections of the little parish council. That simply cannot happen, because if there were really substantial local concern and the parish council were quite unable to make the central Department listen to their case, then all they have to do is persuade their district council to make the objections and the public inquiry is mandatory. Therefore their interests are fully safeguarded at the centre and at the local levels.

Technically, under this Amendment a parish council could not submit a formal objection without there having to be a public inquiry. But they may very well not want to have a public inquiry, which can be costly in money for the briefing of counsel, in the time which needs to be spent on the full preparation for oral presentation of their case and in background briefing for cross-examination, and so on. Moreover, the public inquiry procedure requires many months before a decision can finally be made, and it is often in the interests of all concerned for a decision to be made quickly one way or another. Certainly a parish council could avoid this by making its objections informally outside the scope of the Bill, but the council might not feel that such informal objections would carry quite the same weight as a formal written objection which the Secretary of State was required by law to take fully into account. The Amendment introduces an element of rigidity into procedures which parish councils might find very unwelcome when they realise the cost involved. For all these reasons, I earnestly hope that the Committee will not accept this Amendment.


I accept a number of the noble Lord's arguments, particularly a number of assurances that he has given, and I take the point about the distinction between an objection to a closure and the objection to a suspension. I quite see that it is not entirely on all fours with the 1959 Act. Nevertheless, I am not entirely satisfied by the noble Lord's arguments, because it seems to me that in the last few paragraphs of his answer he contradicted himself. If I understood his argument correctly, he was saying at the beginning that one of the reasons for not giving the right was that there would be too many objections which were frivolous, because parishes were naturally against this kind of development. They would start off by not being fully representative—I think we could argue that—and might not neces the people. He finished by saying that, of sarily be representing the real washes of course, the whole procedure was extremely expensive, would take a lot of time and trouble, because of this parishes may not want these powers. It seems to me that those are mutually contradictory arguments.


I do not think there is any contradiction. There might be one or two people with extremely strong views on a question like this who could involve a parish council in an inquiry which might turn out to be very costly and rigid. I do not believe that the beginning of my brief was contrary to the end of it.


Perhaps not, but it seems to me that the noble Lord has got himself into a position of paternalism, where he is saying that he must not give the parish council these powers because they might not know how to use them and might get themselves tied up in knots. That does not seem to me to encourage the kind of grassroots democracy which we all want to see. I do not wish to press this matter tonight. but it would be untrue to say that I am fully satisfied, and I and some of my friends—and the newly nominated President of the Footpaths Preservation Council, has joined me so we have reinforcements here—may be bringing this Amendment back at a later stage. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn. Schedule 3 agreed to.

Remaining Schedule agreed to.

House resumed: Bill reported with Amendments.

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