HL Deb 28 February 1985 vol 460 cc1055-64

5.47 p.m.

Lord Skelmersdale

My Lords, on behalf of my noble friend Lord Avon, I beg to move that this Report be now received.

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

Baroness Nicol

My Lords, I should like to take this opportunity briefly to thank the Minister for the very helpful letter which he sent in response to a number of questions which I asked at Committee stage, and to say to the House and to those noble Lords who have been taking an interest in the Bill that the reason why we have not pursued our amendments at this stage is because I understand that a meeting is taking place in Northampton on 6th March to try to overcome some of the problems which we raised at Committee stage. We are therefore holding our fire, if I may use the phrase, until we have the result of that meeting. We shall then consider what steps we need to take at Third Reading.

Lord Skelmersdale

My Lords, I am grateful for those few words of comfort from the noble Baroness. As she knows but the House does not, I promised to report as soon as practicable after the meeting on 6th March, which incidentally, is to be held in Northampton and not in London, as the noble Baroness will welcome. I hope to do this by the evening of the following day, but if I am fractionally late I hope that the noble Baroness will excuse me.

On Question, Motion agreed to.

Clause 7 [Power to enter former mining land etc.]:

Lord Lloyd of Kilgerran moved Amendment No. 1: Page 5, line 10, leave out paragraph (c).

The noble Lord said: My Lords, with the leave of the House, I should like to speak also to Amendment No. 2.

Amendment No. 2: Page 5, line 17, leave out subsection (4).

The object of these two amendments is to limit the workings which arise when a local authority authorises persons to come on to land. The first part of the Bill is devoted to what the noble Baroness, Lady Nicol, referred to as the problems in a specific area in the Midlands. The Bill, the first six clauses of which deal with specific problems, delineates where the problems are parish by parish, and then there are two general clauses giving powers of entry to land.

Under Clause 7 certain operations can take place. My object is to limit the scope of these workings, for this purpose. For some unknown reason—a reason I cannot understand—the Government refuse to allow an owner of land, or anybody with interests in the land, to claim compensation when a loss of value to the land arises as a result of the operations. In Clause 8, where other authorities can be given for entry into the land, an opportunity is given to the owner of the land, or anybody having an interest in the land, to claim compensation for loss of value or depreciation in the value of the land. What I cannot understand is why in Clause 7, when people come on to the land with large equipment to do boring and discover what is under the surface of the soil, the Government say that no loss of value can arise and therefore it is not necessary to put in that small section saying that the owner can claim compensation if there is loss of value. He would have to prove that there was loss of value before the necessary tribunals, if he were to go as far as that.

Clause 7 is a curiously worded clause giving general powers of entry on to land. Whenever there is a clause giving general powers of entry on to land one has to examine it with great care. The clause starts by saying that the works are confined to what is known as Section 89(2) of a delightful Act called the National Parks and Access to the Countryside Act 1949. Section 89(2) of that Act, which is the basis for most of the operations and developments arising from Clause 7, reads, under the heading "General Powers of Local Planning Authorities", as follows: For the purpose of restoring or improving the appearance of derelict land in their area which in the opinion of the authority is in any way unsightly, a local planning authority may (a) plant trees, or (b) carry out such work or do such other things as appear to them expedient for that purpose". The rubric to this section is, "Planting of trees and treatment of derelict land". What could be more attractive to a landowner than that kind of thing should happen to him?—that people were coming on it to improve the land.

But when one looks at the further powers that are given to those entering on the land, they are far more extensive than merely to deal with "improving the appearance", and so forth. They can come on to the land or holding to discover what is underneath it, to discover whether there have been any mining operations on that land, whether people have dug underneath the land from adjoining land to take out limestone and therefore cause some difficulties to that land, for perhaps it may collapse.

Then the Bill before us says in Clause 7(9): A person duly authorised … to enter any land … may take with him on to the land such other persons and such equipment as may be necessary".

If the equipment is brought on to the land merely to plant trees or to improve the general beauty of the land, then that in my view is all right because the damage to the land cannot be very great, and in fact it might improve the value of the land. But in this case equipment is to be allowed to come on to the land, to dig, to bore holes and as many persons as necessary can come on to the land—and it is not said for how long. It may be for weeks or for months that this sometimes huge equipment will be on the land, near where buildings have been put on the land. And perhaps that land is vacant. There is no indication that this equipment and the people involved will be there just for survey and for monitoring the survey, as the Government now suggest.

Let us take the position of a small farmer who has a derelict piece of land nearby when suddenly these things descend upon him. This equipment comes on to the land. He may have been in the middle of negotiating the sale of that land; he may have the intention of selling the land later. What will be the view of the local people (let alone estate agents and other people far away from the land) and what will be their opinion as to the value of the land with all this equipment on it? They must surely say: "There is something very wrong about this land. We must be very careful as to how we deal with this land, in regard to whether or not we should buy it at the price quoted". It seems to me inevitable that psychologically a lot of people may be affected in what they consider to be the value of this land as put upon it by the owner.

Therefore as the Government have been so pleasant about this—they say that I am exaggerating the difficulties which this landowner or which anybody with interest in the land will suffer as a result of their operations—I say, "Limit the powers of entry to do such works as Section 89(2) of the National Parks and Access to the Countryside Act 1949 says can be done: developing and looking at the land, surveying the land to improve its natural beauty". I say that they should not be allowed to enter on the land with large equipment, to dig holes in the ground, even though minerals have never been taken out of that land before. Perhaps minerals might have been taken out of adjoining land and they might have been worried that perhaps there may be underground passages dug out. In those circumstances, the object of my two amendments is to limit the nature of the work which can be done by persons authorised to enter on the land. I beg to move.

Lord Skelmersdale

My Lords, I am not quite sure whether the noble Lord has spoken to Amendment No. 4 as well as introducing Amendment No. 1 and is speaking also to Amendment No. 2. It strikes me that he might just as well have made the second part of his speech on Amendment No. 4 as on the first two.

Lord Lloyd of Kilgerran

My Lords, perhaps the noble Lord will allow me to put my case as I think proper in the circumstances. There will inevitably be a certain amount of overlap. I have put my case in relation to Amendments Nos. 1 and 2 because the Government will not include in the compensation clause a parameter dealing with loss of value of the land.

Lord Skelmersdale

My Lords, I stand corrected. Nonetheless, before saying what I have to say on the first two amendments I should point out two general facts. The first is that Clause 7 (and indeed Clause 8, which to some extent reflects on Clause 7 but not entirely) apply only to compulsory entry and compulsory undertaking of works. In other words, if they are freely undertaken with the agreement of the owner or occupier by the council, these two clauses in the Bill do not apply in any event. It follows from that that a land owner who lets the council on to his land by agreement would be well advised to have already come to terms with the council on the question of compensation including, if he thinks fit, possible depreciation. However, as I have said, we are not dealing with that at the moment.

What we are dealing with—and the noble Lord devoted part of his speech to it—is subsection (2) of Section 89 of the National Parks and Access to the Countryside Act 1949. I had a little difficulty with this, especially with the term "relevant operations" in Clause 7(2) of the Bill. I looked up (as I am sure did the noble Lord) the National Parks and Access to the Countryside Act and I failed to find reference to it there. I then went back to the Town and Country Planning Act 1947 and failed to find it there. Mercifully, I met an adviser who suggested that I should look in the Derelict Land Act 1982 and Section 3 thereof, which in fact completely revamps Section 89(2) of the National Parks and Access to the Countryside Act. In that revamping it is specifically provided that the replacement subsection applies to derelict, neglected or unsightly land or land which is not derelict, neglected or unsightly but is likely to become so.

So it is directly relevant to the Bill that we are considering at the moment. The effect of the amendments that the noble Lord has just moved and spoken to would be that the local authority would not be able to use the powers of compulsory entry on to land given by Clause 7 where they are considering whether to carry out remedial works under Section 89(2) of the 1949 Act and wish to survey the land for the general purposes of ascertaining the need for such works. Indeed, the second amendment would remove the express provision which will ensure that the power to survey land includes power to search or bore for the purpose of ascertaining the nature of its subsoil.

Where there is thought to be a risk of collapse in an area, it is right that a local authority should be able to undertake investigative operations compulsorily where consent to access is not freely given in order to be able to measure, for instance, the extent of mine workings and the risk and likely extent of collapse. It would be a nonsense if the power to enter compulsorily to undertake remedial works was in the Act but not the power to survey in order to measure the need for such works. Both these amendments concern investigatory surveying. Investigation and monitoring of sites necessarily involve the carrying out of operations such as the drilling of boreholes to ascertain the nature of the subsoil. While this is a natural concomitant of the power to survey, an express provision is needed to ensure that there is a clear power to carry out such works as are required for a proper survey. The inability of a local authority to undertake operations such as the drilling of boreholes is likely to hinder their capacity to ascertain the state of the ground, which may be in danger of collapse. That is why I cannot accept the second amendment.

6 p.m.

Going back briefly to the first amendment, I recognise that in most cases consent to enter to survey will be freely given. It is, after all, going to benefit the owner or occupier. But where consent is withheld, or even delayed, the inability of the local authority compulsorily to survey could result in the authority being unable to prevent a surface collapse, to the detriment of the landowner and perhaps of a neighbouring surface landowner. I regard this as an absolutely key part of the clause, which is why I must reject the two amendments.

The Earl of Kinnoull

My Lords, I wonder whether I might briefly intervene. My noble friend referred to the Derelict Land Act 1982, and I think he said it was possibly more relevant to the 1949 Act. I am wondering whether it should be put into the Bill as to why we have the 1949 Act, which has been superseded by the 1982 Act. It does seem a little nonsensical. My second point is that I think the burden of the noble Lord's amendments is basically the automatic right to compensation, which should not have to be proved by the landowner but which the local authority should automatically have a duty to deal with. It would seem that the most obvious point to cover is the schedule of condition of the land before the surveyors go in with their machinery, and I am wondering whether words of that sort could be put into the Bill which would probably cover the noble Lord's point and meet my noble friend's reply.

Lord Skelmersdale

My Lords, with the leave of the House, perhaps I may be allowed to answer my noble friend. With regard to his first point on whether the Bill should refer to Section 33 of the Derelict Land Act 1982, my understanding is that the normal method of drafting in such cases is to refer to the original Act, in this case the National Parks and Access to the Countryside Act 1949. So what we are in fact doing is employing standard words for a given situation. So far as my noble friend's other point is concerned. I have, I hope, a few minutes in which to consider it, and I should like to come back to the charge when we discuss Amendment No. 4.

The Earl of Kinnoull

My Lords, if I might intervene once more, with the leave of the House, may I suggest that although it may be normal to go back to these old Acts, it is in fact utter nonsense. We could go back to the 1862 Act, following that procedure. Really, to help people understand Bills passing through Parliament we should refer to the modern Act, which we have just been through, and assist people.

Baroness Nicol

My Lords, perhaps I might add in a very small voice at this point that I, too, got into some difficulty this morning and had to ring the Minister's department, which helped me out. That is why I have not joined in the debate before now, but it does seem to me that we are approaching a state where some consolidation of these Acts would be a very good idea.

Lord Lloyd of Kilgerran

My Lords, I am very grateful indeed to the noble Earl, Lord Kinnoull, and to the noble Baroness, Lady Nicol, for their interventions. To come to these words, "relevant operations", it is very curious that if you look at Clause 7(2) of this Bill you see: In this section 'relevant operations' has the same meaning as in section 89(2) (underground mining operations other than for coal)". If you then go to Section 89(2), you cannot find anything about "relevant operations" there. Then, if you have a little more time you go to the interpretation section, thinking that the definition will surely be there. So you look there, but you cannot find it. Then, to make matters even worse, the interpretation section refers you to an Act of 1947. You look there, and still you cannot find it. You have to find the definition in another Act, to which the noble Lord has referred.

Take the case of a poor Welsh farmer with a piece of derelict land. He goes to his solicitor, or to the county solicitor, for advice, and there they have to do that kind of search. It is not fair on the owner of land. I agree with the noble Earl and the noble Baroness that something should be put into the Bill to define more closely what is meant by "relevant operations", rather than one having to go through this rigmarole of looking through all the other Acts to find it.

The speech of the noble Lord the Minister makes it more difficult for me to understand why he agrees that all this work must go on and yet will not give any ground for compensation to the owner of the land. Having regard to the fact that I do not wish to refer to my Amendment No. 4 at this stage, I would only say this. The Minister has quite clearly indicated from his brief that very big operations may be necessary to deal with questions in relation to this land—equipment, boring and so on. Numbers of engineers may descend on the land: and he says that that is essential under the section which I wish to delete—that is to say, Clause 7(3)(c). In these circumstances, and having regard to the very helpful observations of the noble Earl, Lord Kinnoull, as to what might be included in the Bill to overcome the difficulties which have arisen between myself and the Government, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 and 3 not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 4: Page 6, line 14, after ("damage") insert ("or loss of value").

The noble Lord said: My Lords, I shall try not to repeat myself. The noble Lord the Minister was quite right when he said that there was a certain amount of overlapping in my speeches. It is inevitable in a matter of this kind. Now we come to a very small but important amendment, to Clause 7(11) on page 6. That subsection gives grounds for an owner of the land or anybody interested in the land to claim compensation. The grounds are these: Where in consequence of an exercise of the power to enter land conferred by this section any damage is caused to land or chattels, or any loss occurs in relation to chattels, the local authority authorising the entry shall pay to every person interested in the land or chattels compensation in respect of the damage or loss". All I am asking the Government to do is to include these four further words after the word "damage", so that the passage reads: any damage or loss of value caused to the land or chattels". The entry on to the land may cause damage or loss of value to that land in the way I have indicated. It may cause damage to the chattels. I do not know what chattels the Government expect will be found on the land or in buildings, or anything of that sort. However, it may be that they will not be destroyed but that damage is caused to them and there is a loss of value. Perhaps the damage to chattels is covered but loss of the value of land is definitely not covered as a result of this complicated operation.

I thought that parts of the Minister's speech in relation to Clauses 1 and 2, when he departed from his brief, were very sympathetic to me, because he indicated that an owner of the land, knowing that the authority wanted to descend upon it, should try to get compensation settled with the authority before the people enter on the land. What compensation had he in mind? It cannot be for loss or damage in relation to chattels of any kind, because the people have not gained entry to the land and have not been messing about with the chattels—if that is the correct term. Therefore, what must be in mind is surely the loss in value of the land that might arise.

The noble Lord the Minister says that the owner of the land should endeavour to sort out what the loss would be; but the loss in value of the land may be paramount to the activities of the farmer who may have been trying to sell it. The price must go down, if it gets around the estate agents concerned with the selling that all this big machinery will descend on the land and will occupy it for goodness knows how long.

Therefore, I ask the Minister—I am sure that with his usual courtesy he will do so—to put himself in the position of the small landowner. There are patches of land all around the area of Dyfed which I know quite well, where this kind of situation may arise. I am not asking the Government to give any money to these persons who are on the land. However, after the machinery has departed from the land, after all the hosts of people have left the land, the person concerned, when making a claim for compensation in regard to damage to chattels, should be able to include a claim for loss of value of the land. He will have to prove that loss of value and it may be difficult for him to do so, but I am sure that the amounts involved would be quite small compared with the value of the land. I should have thought that, in many instances, losses of the order of £1,000 could be involved in transactions relating to land, onto which a local authority has sent its machinery and its engineers. Therefore, I beg to move that in subsection (11), which gives grounds for compensation, a further ground should be introduced; that is, the ground that there has been a loss of value of the land which the owner has to prove. I beg to move.

Lord Skelmersdale

My Lords, I am grateful to the noble Lord, Lord Lloyd of Kilgerran, for explaining his amendment so clearly. I must say that he has raised this point consistently at every stage of the Bill, and also in correspondence, and I have obviously not yet been able to satisfy his concern. That concern is that in his view it is possible that such works as local authorities are permitted to undertake under Clause 7—and I have already explained, in answer to his previous amendments, that these are very small—could result in a loss of value being caused to the land.

The noble Lord knows my arguments as well as I do, and I do not think it would get us any further if I were to repeat them now. But he asked me to put myself in the position of a villager in Wales. I am going to return the compliment and suggest to him how I think that the operation of this clause will work, whether in Wales, Yorkshire, Northamptonshire or anywhere else.

6.15 p.m.

First, the local council has to be suspicious about the state of the land; secondly, it has to give at least 10 days' clear notice in writing to owners or occupiers of the land. Failing this, it has to justify its position to a justice of the peace. In any event, its officers will then enter the land. The noble Lord said that local people will say: "What's going on ere then?" The officer will either tell them or will not, as the case may be. Indeed, from everybody's point of view it would be far better to come clean and explain the position. Even the most suspicious person would like to have his fears either confirmed or proved wrong.

Let us concede the second of my suppositions and that the officers, the contractors of the local authority or whoever it happens to be, do not explain to the local populace what is going on. It just might be that in these circumstances a council enters onto land in an area which is underlain by underground mineral workings in order to survey and monitor. The act of entering may create suspicion as to the state of the area, in the unlikely event—which in country areas is very unlikely indeed—that it is not known by the local populace already, and thus might in exceptional circumstances lead to a temporary loss of value.

If, following a survey, the local authority has seen no need to proceed with remedial works, then its departure from the land should immediately restore confidence. Any loss of value that might have occurred in the meantime would be so temporary that in my view, it would be totally unprovable; and that is one of the points which the noble Lord made. If, however, the council sees a need to proceed with remedial works, then Clause 8 will bite and, as the noble Lord knows very well, compensation for depreciation of the value of the land is included under Clause 8 as a compensatable factor. It must always be borne in mind that the purposes of the operations under Clauses 7 and 8 are to remove any danger to life or property and to restore, not minimise, the value of land underlain by any underground mineral workings.

At this point, I think it would be courteous to answer the second question of my noble friend Lord Kinnoull. I am advised that it should not be necessary to have a schedule to the Bill wherein the phrase "relevant operations" is defined. The notice under subsection (6) must specify what the authority is preparing to do, which is a point that I would have made had the noble Lord, Lord Lloyd of Kilgerran, moved his Amendment No. 3. I am further advised that the Derelict Land Act 1982 inserts a new section into the 1949 Act and therefore reference must be made to the earlier Act. So that regarding drafting I was quite right in what I told my noble friend earlier.

To sum up on this amendment, the difference between Clause 7 and Clause 8 is that activities under the former would be most unlikely to lead to permanent depreciation, while if works are necessary using Clause 8 then they could be so considerable as to cause such depreciation, although the more likely result is, as I have said, that the works would lead to appreciation of the value of the land. This is why I am afraid that, yet again, I must say that I really do not like the noble Lord's amendment.

Lord Lloyd of Kilgerran

My Lords, with the leave of the House and before the noble Lord sits down, may I ask him this? He said that operations envisaged under Clause 7 will be of a temporary nature, but where is the word "temporary" in that clause? The works could go on for weeks and weeks, trying to find out what the subsoil is like, and so on. Also, the noble Lord said that they will be small operations, giving the idea that there will be only a couple of students coming along to survey the land. But under this Bill any persons entering on to land can bring any equipment they like, which may be huge tractors, huge excavators or huge drills. What is there in this Bill to justify the noble Lord saying that they will be small operations of a temporary nature?

Lord Skelmersdale

My Lords, I am not aware that I said that they would be small operations. The noble Lord refers to excavators, mine-filling equipment and goodness knows what else. However, we are not talking about Clause 8; we are not concerned with that here because the noble Lord's amendment is to Clause 7. What I said on Clause 7 was that it would be a temporary phenomenon—yes, he is quite right—because the only power that is given is to enter and survey.

My noble friend Lord Swinton had an interesting exchange at Question Time some time ago which went along the lines of "How soon is soon?". The noble Lord probably has a different view of the word "temporary" from mine, but I should have said that a month to six weeks would be temporary when compared with the length of time which, if it was necessary to operate the conditions of Clause 8, would actually be needed for carrying out the works.

The Earl of Kinnoull

My Lords, my noble friend was kind enough to refer to a question I asked about the 1982 Act. I am glad that he was right in his answer, but I am sad at the answer he has given. I am sure the noble Baroness is right in saying that we must have a consolidation Bill ready to assist everyone in this unnecessarily complicated situation.

As regards this amendment, we are dealing with the very sensitive issue of compulsory powers of local authorities. My noble friend was kind enough to give a version of what could happen to a small landowner or a large landowner—it is more sensitive in the case of a small landowner. I must admit that I am not convinced myself that my noble friend is right in saying that there could not be an occasion when there was what would amount to a depreciation of the capital value of the land. The case I would cite would be that of a small owner, pushed by his bank to sell, who suddenly receives notice halfway through the preparation of the sale—10 days' notice to enter—and then on comes a lot of machinery. At that moment the weather becomes rough and the machinery has to stay there but cannot work. It could be on the land for at least three months. In the meantime, the sale proceeds because the bank has insisted. I cannot believe that my noble friend could not accept that under those extreme conditions there would be a capital depreciation of the value of the holding. I think it is probably that sort of case which the noble Lord who moved the amendment so ably has in mind.

Lord Lloyd of Kilgerran

My Lords, I notice that the Minister does not care to reply to the graphic way in which the noble Earl, Lord Kinnoull, has indicated the difficulties. He indicates the case where a bank manager might be involved with the owner of the land. In fact, it may not get as near as that. The owner of the land may have a heavy overdraft and then this machinery descends upon the land. The bank manager says, knowing about this, "Hello, I must be careful; I must ask the owner of the land to do something about his overdraft and reduce the overdraft because this land is not as valuable as I thought it was when it became a support for the overdraft".

As the noble Lord the Minister went on explaining the position, I thought he was becoming more sensitive and more sympathetic, particularly to the small farmer, in this respect. I cannot understand why the Government say, "The compensation is really negligible; there will not be any compensation". They have decided that any local authority that sends people on to the land will increase the value of the land. In effect, what they are saying is that whatever a local authority does under Clause 7 it means that the value of the land will appreciate and not depreciate.

I once referred in this House to people working on and considering matters from rather dizzy heights and not having their feet on the ground in relation to practical matters such as this Bill raises. But in view of the somewhat dogmatic and unsympathetic view of the Government in relation to my amendment, and as I do not want to keep your Lordships here any longer because it is getting late, I should like to consider what has been said, particularly in the helpful observations of the noble Earl, Lord Kinnoull, and what the Government have said, and I reserve the right to raise these matters at the next stage. With the leave of the House, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.