HL Deb 08 March 1993 vol 543 cc867-84

6.14 p.m.

Viscount Colville of Culross

My Lords, I beg to move that this Bill be now read a second time.

It would be surprising if many of your Lordships did not know something about the Malvern Hills. They are a feature that can be seen from a considerable distance. Together with the musical association with the composer Elgar, they form one of the main attractions of that part of the county of Hereford and Worcester.

Towards the end of the last century much parliamentary time was spent in regulating and preserving common land and old manorial wastes. In 1884, a Private Act created a body of conservators with responsibility to preserve the common and other land described in a schedule and on a map, partly in what was then Herefordshire and partly in Worcestershire. That was the beginning of the statutory definition of the Malvern Hills.

The job of the conservators was to prohibit encroachments; to prevent nuisances; to preserve order; and generally to manage the land. At that time 510 acres were put in their care. There was set up a system of appointing the conservators by the parish vestries—at that time the only method of local government—and they raised money by precepts on the parishes. The hills became a major attraction to visitors. They are also a source of stone and much quarrying took place, leaving what seemed to me from my knowledge of the area ugly scars with in some cases dangerous cliffs and deep water at the bottom.

That quarrying was the subject matter of a case called Pyx Granite Company v. The Minister of Housing and Local Government. It was a seminal case in the development of the law on town and country planning. It was finally decided by the Judicial Committee of the House in 1959. In that case interesting issues were discussed about the relationship between consents for quarrying granted under the 1924 local Act and the general planning legislation. The 1924 local Act was not the only one. The pressures of visitors and quarrying led to three Private Acts. There was one in 1909, one in 1924 and one in 1930.

Changes in local government and increasing demand for amenity works were reflected in later constitutional and electoral arrangements. The conservators were, in 1924, empowered to buy land, if necessary by compulsory purchase, and quarrying was increasingly brought under control. As is normal in all such legislation, special sections were inserted to protect private interests and the interests of statutory undertakers. By the time of the 1930 Act, the conservators were looking after 1,534 acres. Sixty years later the area is about 3,000 acres, much of it subject to common rights and almost all, if not all, open to public access as open space for public recreation.

A Second Reading is an occasion to examine the principle of a Bill. The only real principle in this one is to bring up to date the powers and duties of the conservators to reflect today's needs. The passing of 60 years has brought huge changes in society. Common land with public access always tends to create stresses between those who, in ever increasing numbers, want to enjoy the facility of the open space and those with various proprietary interests. Celebrated as the hills are, they are now easily accessible via, for instance, the M.5 and M.50. Evidence is appearing, in a manner all too familiar in the Pennines and Lake District, that public access is wearing out the foot and bridle paths. There is an obvious demand for refreshment and for lavatories. While ready access to the countryside is now both claimed and acclaimed, so too is an insistence on proper conservation of the landscape, of flora and fauna, and every aspect of natural beauty. Reconciliation of these conflicting pressures is increasingly difficult.

I certainly do not wish to overemphasise last year's invasion of part of the hills at Castlemorton by a large group of people who did damage and proved difficult to remove. Indeed, I am told by those who are promoting this Bill that much of its provisions had already been thought about and drafted before that event occurred. That was only one occasion. Other emergencies arise, such as in recent years very dry weather when the fire authority wanted the hills closed because of fire risk. I expect that the Select Committee, to which I hope the Bill will go, will look carefully at Clause 17 in this respect. Any temporary and limited closure of any part of the hills under that clause is already set about with multiple safeguards written into the Bill.

All this leads to a reappraisal of the resources needed by the conservators. The time has come when they should be empowered to have offices other than in their clerk's private office; when their employees may have to live on the spot; and when modern facilities may have to be provided or permitted as much for those who live within the area as for those who come to visit it as members of the wider public. Stray dogs are not welcome among free grazing stock. Abandoned cars are at least as unattractive in the Malvern Hills as they are to those of your Lordships who see them in the countryside elsewhere.

Of course all these functions must be financed. The precept on what is now the Malvern Hills District Council will continue, but in the Bill there are sought limited powers to borrow, as well as the ability to carry over a modest fund for land acquisition from year to year and to precept a small amount for contingencies. There are other detailed provisions. I would suggest to the House—and I have studied this matter with great care—that, taken together, they amount to a reasonable modernisation of the conservators' powers and duties to equate them with contemporary need and, I hope, carry the conservators successfully into the next century.

There are a number of petitions against the Bill, and I have read them all with great care and interest. It would be wrong for me to go into any sort of detail about them, but I want to say two things. First of all, there has been much negotiation already with the petitioners and more is arranged, some indeed this very week. After a discussion with the promoters I decided to seek to accomplish the stage of a Second Reading of the Bill today in the knowledge that, if that is given, it will do nothing to halt the process of contact and accommodation with the petitioners, much of which has already been achieved.

The other thing I wish to say about the petitions is that I have great sympathy with one of the petitioners, who would like to see this private legislation consolidated. I am sure that everybody would. The trouble about it is that it would be a fairly expensive exercise, and the cost would fall upon the council tax payers in the Malvern Hills District Council area.

Of course I shall attempt to answer any questions that your Lordships may have about this Bill when I come to my right of reply, but there is one thing that I ought to deal with at any rate in a preliminary way, and that is the Instruction placed on the Order Paper by my noble friend Lady Macleod of Borve. I have looked again with great care at the wording of this Instruction and, as I said, I am extremely familiar with what is in the petitions. So far as I can see, if your Lordships were to direct the Select Committee to take special regard of the three points in this instruction, they would have drawn to their attention many points that are already in the petitions, and which they will have to take account of anyway. But I know that there is some public apprehension in the area of the Malvern Hills about this Bill and I appreciate that what my noble friend Lady Macleod is trying to do is to concentrate the minds of the Select Committee on these three particular points and to emphasise, if your Lordships were to give a Second Reading to the Bill and then to pass the instruction, that those are matters that should be at the forefront of their consideration.

Neither those who are promoting the Bill nor I can see any difficulty should your Lordships see fit to pass this instruction. We think that it would probably help the Select Committee to do what I have just said, and therefore I am not going to suggest to your Lordships that you should oppose it. But what I do say is that, on the basis of the principle that I have tried to describe and for the reasons that I have given, the Bill should at any rate be given a Second Reading this afternoon. I beg to move.

Moved, That the Bill be now read a second time. —(Viscount Colville of Culross.)

6.27 p.m.

Baroness Macleod of Borve

My Lords, on behalf of the Members here tonight I should like to thank my noble friend Lord Colville of Culross for his excellent speech in introducing this Bill, and for kindly in advance saying that if it is mooted by this House he would accept my Instruction. I am grateful to him for that. He is a well-known Queen's Counsel, and I am not in the law or well versed in it, although I have practised it, and I appreciate the fact that he has put so much time and effort into this important Bill. We listened with great interest to all that he said.

However, my noble friend will know that if the Bill goes through in its present form it is possible, and even probable, that the Malvern Hills will be ruined forever. That is one of my reasons for putting down the Instruction to the Committee. Worcestershire is the most lovely county and the Malvern Hills the most beautiful range of hills in the country. I admit to being a lover of the county. I was brought up there and went to school in Malvern. Indeed, my ancestors and those of my noble kinsman Lord Hampton have lived in the same house in that county for over 400 years.

Although I must criticise the Bill, I hope that no conservators will think that I am criticising them. There are 26 members and, as my noble friend said, they look after about 3,000 acres. Luckily we have several speakers tonight so I shall deal with some of the clauses and perhaps later speakers will deal with the others. I start with Clause 3, which is the first clause that matters. It would empower the conservators to change the face of the Malvern Hills forever. They would have the power to build a McDonald's, a Little Chef, and fish and chip shops. All of those eating places are welcome in the right place, but not on the Malvern Hills. The Bill provides that there must be road access, parking places, shelters and lavatory accommodation, not to mention postcard shops and information centres. All of those can be had at the base of the hills and need not be on the hills.

Clause 4 gives powers to erect up to six mobile stalls for purveying food and refreshment to the public. The licence to sell hot dogs, ice creams, burgers of various kinds and drinks in cartons or bottles would be available to anyone for not more than one year. What eyesores such stalls would create.

Clause 5 provides the power to erect temporary lavatories. They will be temporary because the Bill stipulates that the lavatories should not remain on the same site for more than 14 days. Therefore, it will be no use having a glass of beer or Malvern water at the bottom of the Beacon believing that a convenience is within a reasonable distance because it will have been moved since the last visit. As my noble friend said, there are disused quarries: nature's needs can and should be met there.

Clause 8 makes it possible to grant rights to erect cables, pipes and so forth above as well as below the ground for services relating to water, electricity, gas, oil, telecommunications, drainage and sewerage. Electricity cables on the Malvern Hills are unthinkable but they would be allowed under the Bill.

Clause 9 gives powers to any person to construct roads with the authority of the conservators. Will the roads be single track or two way? What will the speed limit be? It would be difficult for one car to drive along the narrow ridge of the Malvern Hills let alone two-way traffic moving up and down the Hills, as is envisaged. Surely the point is that all of those money-making ventures are not in keeping with the hills.

Clauses 10 and 11 deal with the building of office accommodation. That is to include residential space and the Bill gives powers to rent off any surplus accommodation. One wonders why people want to acquire so much and too much in the first place. Malvern Wells, Malvern Link, Great Malvern, West Malvern, Colwall at the foot of the hills all have suitable buildings for offices or houses. However, if the Bill as drafted becomes an Act it will enable the building of large houses and large blocks of offices anywhere, including on the Malvern Hills.

Clause 17 deals with access by pedestrians and equestrians. The clause needs tidying up so that the public is aware of the decisions of the conservators and other bodies. I understand that the Severn Trent Water company has several times asked the conservators to fence the land above its three reservoirs. So far permission has been refused but perhaps there is room for that to be given under the new clause. I hope that that will be reconsidered.

Clauses 18, 19 and 20 deal with horse riding on the hills and they seem to me to be adequate. As a lover of horses and a former rider I can think of nothing that would give people more pleasure than a hand canter along the hills. The whole of Worcestershire to the east, across the Evesham-Pershore valley to the Cotswolds, Shropshire to the north and beautiful Herefordshire and Wales to the west are visible from the Malvern Hills on a clear day.

Page 2 of the Bill describes the hills as being widely known for their natural beauty. I should add the word "historic". Legend has it that on the British camp site on the south side of the Wytch cutting, which most noble Lords will know takes one from Worcestershire to Herefordshire, there are trenches which were made and used by Caractacus in his last stand against the Romans. On that I base the use of the word "history". Malvern's famous son, Sir Edward Elgar, wrote a march which he called "Caractacus March" so that is probably more fact than fiction.

I shall not comment further on the Bill. However, I hope that I and other noble Lords will persuade the House to accept the Instruction. I believe that a Select Committee and an Instruction to it is the best way of dealing with the Bill.

6.36 p.m.

Baroness Nicol

My Lords, I am grateful to the noble Viscount, Lord Colville, for the manner in which he introduced the Bill. I hope to put to him one or two questions which he left unanswered. I compliment the noble Baroness, Lady Macleod, for the inspiring way in which she introduced her Instruction. She left little unsaid.

The noble Viscount, Lord Colville, did not mention the fact that the conservators are seeking an extension of service from three to four years. The request is unusual and I believe that there must be a good reason for making it. It would be helpful to know what that is.

The noble Baroness, Lady Macleod, mentioned Severn Trent Water, from which I have received correspondence. It is anxious to protect its three reservoirs from pollution, caused in particular by sheep grazing nearby. It believes that there is a danger of contamination by the cryptosporidium parasite, which can be a hazard to human health. The authority is therefore anxious to fence off the areas concerned but its applications have been refused a number of times. However, the provisions of the Bill would make it easier for the conservators to grant the application if they were so minded. Although I have the greatest sympathy with the water company in its desire to ensure the safety of its supplies, I hope that in view of the potential conflict of interest the Select Committee will pay particular attention to the means of protecting the water supply. No doubt fencing is the cheapest and most direct option but in the special circumstances we need to be assured that there is no other way of achieving safety.

The Malvern Hills are part of our natural heritage and their importance is far greater than their size. Their vulnerability to people pressure led to the original 1884 Act. The increasing pressure has almost 100 years later made the conservators seek greater powers for the protection of those same hills. There is a precarious balance between conservation and exploitation. We all understand the pressures with which the conservators are trying to cope. However, the petitioners against the Bill are of the view that the powers now being sought are greater than are necessary for conservation and could lead to more exploitation.

It was to protect the hills from enclosure and encroachment during the period when Malvern was a growing spa town that the conservators were established by the Act of 1884. Their powers, we are told, and have been added to since then, but the powers were always to enable the conservators to pursue their original purpose to safeguard common rights and to maintain the hills for public enjoyment. As late as the 1930 Act, Section 3 spelt out conservators' duties as, to keep the Malvern Hills unenclosed and unbuilt on as open spaces for the recreation and enjoyment of the public". This is the first time that the conservators have sought power to exclude the public and to perform certain other acts which are a negation of their original aims. They seek powers, as we have heard, to restrict public access, to erect fences, to build offices and other buildings, to make roads and to build public car parks. They also seek powers to let buildings, perhaps the most difficult of all their requests. In fact, under the Bill they would be able to engage in a number of commercial activities which would be completely alien to the thinking of the founding conservators.

The conservators also seek powers to make trespass a criminal offence. Trespass in this country has always been a civil offence, and I feel that this is not the right vehicle under which to seek to change that attitude. I hope that that clause can be deleted, whatever else may remain.

Most alarmingly of all, in Clauses 6 and 7—the noble Viscount, Lord Colville, did not mention this matter in his introduction—the conservators may sell off land and may apply the proceeds of the sale of that land as income. On the face of it, that is an outrageous suggestion. We need considerably more explanation than we have had about how that particular request came about.

I am quite sure that our heritage is safe in the hands of the present conservators: I have no reason at all to distrust them or their possible actions. But the conservators, even with the new clause if they succeed in getting it, will only be there for a maximum of four years. Who knows what future conservators may consider a reasonable action to take? We must act with that in mind. We are told that the conservators have acquired more land since the original Act, but there does not appear to be a map available to show those acquisitions. Perhaps it is this land that is the target of many of the suggestions and the original holdings are unaffected. If so, the Bill should be specific and put beyond question the inviolability of the original holdings.

I am disturbed that commoners' rights may be at risk. The failure of the Government to introduce legislation to protect common land, despite manifesto promises, means that year by year our stocks of common land are dwindling. Most of the erosion takes place surreptitiously, and we must make sure that in this case it is resisted. As our population grows, what remains of our open spaces becomes ever more precious. With the privatisation of water and electricity, much land to which the public enjoyed access has been transferred to private hands. Week by week I hear of other pieces of land which are no longer available to the public who once enjoyed them. The Forestry Commission is being sold off piecemeal and woodland walks are being closed. We must be ever more vigilant to protect what is left. I hope that the Committee will have that need in mind when it examines the case for the Bill.

6.44 p.m.

Lord Hampton

My Lords, I was glad that the right reverend Prelate the Bishop of Chichester and a former Dean of Worcester read Psalm 121 at Prayers today: I will lift up mine eyes unto the hills from whence cometh my help". I was discouraged a little time back to be told that sentiment must not be allowed influence in planning decisions. It was not because of planning procedure that I joined the CPRE, the Council for the Protection of Rural England, many years ago but a desire taught me by my father to help protect the beauty of the English countryside and the marvellous variety of so many of its villages. The noble Lord, Lord Sandys, my good friend, though on the other side of the Chamber, is president of the Worcestershire branch of the CPRE. He knows more of planning procedure than I do, but I do not believe that it makes sense to allow people by law to take certain actions that you later hope to stop.

I listened to the three previous speakers with interest and, although I am not really on his side, I was grateful to the noble Viscount for what he said. I was particularly interested in his comment on travellers on Castlemorton Common, because during the same week we could hear from our window the steady thumping going on through the night. I just wonder how this Bill could help to stop that sort of thing.

If the House will bear with me, I shall be sentimental and subjective for a short time; I shall seek to be more objective before I close. For almost 30 years I have lived in south Worcestershire, some five miles due east of the Herefordshire Beacon, alias the British Camp. From my study I look out on the Malvern Hills and they have been an endless source of pleasure, both visually and for physical recreation. On two occasions I have walked their length with great enjoyment. I should like to claim it as 10 miles, but I think it is nearer eight. The second occasion was last year when a friend and I counted that we had been to the top of 14 peaks, small but beautiful. My noble friend Lord Hunt, conqueror of Everest, charmed me by saying that he would like to have done the same.

I love the hills as they are and I do not anticipate with pleasure any major change. I have not followed the arguments in the Malvern Gazette as carefully as perhaps I should have done. I was first alerted to the proposals by someone who said that the Malvern Hills conservators were seeking considerable extra powers to build houses, offices and warehouses, to make roads and to fence areas off. I was also informed that conservators' meetings are not normally open to the public. Since then I have received briefs from a number of organisations who feel that the conservators are seeking powers well beyond those needed to carry out their prime functions: that is, to safeguard the Malvern Hills environmentally and to provide facilities and resources for local residents and visitors to enjoy all that the hills and the surrounding countryside have to offer.

It has been said that the Bill will allow the conservators to accumulate money and other assets well beyond those needed to carry out the functions I have mentioned. It is not understood why there seems to be the urgency with which the conservators are seeking to press ahead, how little time they have given to the bodies concerned to consider the draft Bill and how little notice they have taken of suggested alterations.

It is tempting to support rejection of the Bill on Second Reading, but I am persuaded that it would be better to let it go to a Select Committee. However, I shall need to know much more precisely just why the conservators need these extra powers and just what they want to do before I shall be happy to see the Bill enacted. Meanwhile I support my noble kinswoman Lady Macleod enthusiastically in her Instruction to the Select Committee and the reference to the status of the hills as a valuable part of the national heritage, also mentioned by the noble Baroness, Lady Nicol.

Before I turn to details of the Bill, let me pay tribute to the excellent job the conservators have done over the last 109 years. The two people on the board I know personally are highly respected, and I must consult them more closely. But even now the Malvern Hills District Council points out that there are some anomalies in the representation. Some parish councils, such as Malvern Wells, are not represented and some areas such as Powick are represented but do not contribute to costs.

As to the Bill itself, I find lines five to nine of the Explanatory Memorandum a somewhat unconvincing euphemism. I quote: The powers the Bill would grant are intended to enable the Conservators to manage and deal with the land within their jurisdiction more efficiently and appropriately in the light of present day circumstances, in the interests of preservation of the character and amenities of the Hills". I am not very clear as to what it is about the present day circumstances that they have so changed, although the noble Viscount touched upon them to some extent, and how they can be dealt with more effectively.

There is much in the Bill to be argued about, but I shall restrict my remarks to a few clauses. I shall be brief. The noble Baroness, Lady Macleod, my kinswoman, in a moving and effective speech, touched on Clause 3. Why do we want so many refreshment and information centres on the hills? Until it was burnt down a little time back, there was a perfectly adequate cafeteria on the top of the Worcestershire Beacon. Why cannot that simply be replaced? We do not want a chain of restaurants that would change the nature of the hills.

The noble Baroness, Lady Macleod, and I believe, the noble Baroness, Lady Nicol, touched on Clause 10 which concerns the building of offices. Apparently, if offices are surplus to requirement they can be let. But why build them in the first place? Clause 17 has been mentioned by the noble Baronesses, Lady Macleod and Lady Nicol. The Open Spaces Society has a good case when it strongly opposes subsection (11) of that clause which would change trespass from a civil offence into a criminal offence. The noble Viscount will understand that matter more clearly than I. The society holds that for innocent members of the public that would be outrageous. On the other hand, as has also been mentioned, there are three grass covered reservoirs which the conservators have not agreed to fence off. I do not know why that is so. As the noble Baroness, Lady Nicol, said, Clause 25 and Schedule 1 are designed to lengthen the term of office of the board from three years to four. As she said, the present conservators may all be saints. But will that be the case in the future?

I am interested in Clause 22 because it gives the conservators the power to remove bills, placards and signs placed on the hills and generally to keep the area tidy. I would have assumed that they did that anyway, but I do not know whether that is the case. It must be clear by now that there is much in the Bill that worries me. I come back to the Instruction that the Select Committee should, consider to what extent if any the powers proposed to be granted by the Bill go beyond what is necessary for the conservators properly to manage the land within their jurisdiction".

6.52 p.m.

Lord Moran

My Lords, I, too, wish to thank the noble Viscount, Lord Colville of Culross, for his clear and helpful introduction of this Bill. We are talking about a beautiful and unique open space, of which I believe some 95 per cent. is registered common land. First, I wish to say a few words about consultation which the noble Viscount mentioned in his speech. I know that there has been full consultation with the Countryside Commission. I believe that the conservators have responded helpfully and constructively to what it has said. I believe that there has also been consultation with the Department of the Environment.

However, I believe the consultation with the non-governmental organisations has been inadequate. The Open Spaces Society says that, along with other organisations, it was given only five weeks to comment —that is short enough—and that when it submitted its views its objections were not discussed before this Second Reading. I have received a letter from the Ramblers Association of which I shall read an extract as I believe it is relevant to this Bill. It states: As far as we are aware this is the first time that a Second Reading in the House of Lords has been sought before pre-arranged discussions with petitioners have taken place. The Bill was presented to Parliament with a minimum of consultation. If the promoters had consulted adequately we believe that many of the contentious issues could have been resolved. As it is we have arranged for a meeting with the promoters on Wednesday 10th March. We were astonished to learn last week that a Second Reading debate had been set for Monday 8th March, the Second Reading having been arranged apparently after the date was set to sit down and discuss the contents of our petition. The RA strongly believes that consultation should take place and agreement sought prior to a Private Bill's attempted passage through Parliament. Only if irreconcilable differences persist, should Parliament be asked to decide". That seems to me to be essentially reasonable. We in this House had little background on this matter before we heard the helpful speech of the noble Viscount. We have had no map and above all no explanation of why the conservators thought that they required these comparatively sweeping powers.

Mention has been made of the previous Acts. I remind your Lordships that the original Act of 1884 provided that: From and ever after the passing of this Act no enclosure shall be made or building erected on the lands subject to this Act". It empowered the conservators to take all necessary measures to keep the lands as open spaces, free from enclosure and building, to maintain rights of common and commonable rights and to prevent injury to the lands. That seems to me plain enough.

The third Act of 1924 also imposes a duty upon the conservators to preserve the natural aspect of the hills and to protect both the soils and the rocks of the hills and all that grows on the hills. The noble Baroness, Lady Nicol, has mentioned the 1930 Act which requires that the conservators should keep the hills unenclosed and unbuilt on. We should think carefully before we go against the provisions of those Acts which seem to me clear and right. I believe that what our predecessors did was right and has preserved the hills. It would be a mistake if we were to bring about a profound change of the kind that the noble Baroness, Lady Macleod, warned us against in her eloquent speech.

When the committee comes to consider this Bill, it should consider carefully whether it should contain any provisions for the erection of buildings and other structures such as lavatories on the hills themselves. If buildings are required, surely they could be built elsewhere, in Malvern or in the vicinity. If the committee should decide that it is wrong to maintain the provisions in the earlier legislation as regards not constructing any buildings, the next fall-back position would be the application of Section 194 of the Law of Property Act 1925. That Act is referred to in the third paragraph of the explanatory memorandum which noble Lords will have seen. As far as I can see, however, it does not appear in the text of the Bill itself. I believe that the explanatory memorandum has no force in law. That is not a satisfactory position. If we are to rely on Section 194, the effect of which is to require the Secretary of State's authority for the erection of, say, a hotel on the hills, that would in practice involve a public inquiry. Therefore that provides a measure of protection against any inappropriate structure being built.

I believe it is important that the Bill should establish the connection with Section 194 of that Act beyond any possible legal doubt. Unless it can be clearly shown and established that Section 194 covers all the common land, there should be a declaratory provision in the Bill—a clause—making it absolutely clear that nothing in the Bill overturns that provision. I understand that this has been proposed by the Countryside Commission. I should like to ask the noble Viscount, Lord Colville, whether he agrees that if the committee decides that some buildings should be allowed, there should be a new clause of the type I have referred to.

I do not care at all for Clauses 3 and 10, which would allow building on the hills. Clause 11 seems to me to be even worse because, unless I am wrong, it opens the door to development with one eye on the potential for letting office space. That would be quite inappropriate in such an area.

I believe that as far as possible roads should be resisted. If they have to be established, then I agree with paragraph 7 of the petition from the Malvern Hills Friends of the Earth that there should be provision in the Bill for such roads to be designed, sited and constructed from materials such that their impact on the visual amenity and natural value of the hills is no more than can reasonably be avoided. The petition also mentions that such authority as is there mentioned should not be granted if there is a reasonable and practicable alternative.

In relation to access I agree with the view of the Open Spaces Society that there should be consultation with the appropriate bodies and that that requirement should be written into the Bill. In relation to Clause 18 and the subject of riding, it was my understanding that the conservators had agreed to insert the word "reasonably" before "necessary" in the first lines of Clause 18(1). Perhaps the noble Viscount can say whether that word will be inserted because it is not there at present.

In relation to the clause concerning easements, I see strong objection to the putting of cables and pipes above ground on the hills. Again, unless an overwhelming need can be shown I do not believe that that should be permitted.

The noble Viscount mentioned the problem of the New Age travellers, which is a serious problem in many parts of the countryside. However, I believe that it would be inappropriate for that problem to be covered in a Private Bill of this kind. It should be, and I believe that it is to be, dealt with in general legislation.

If the provisions of the Bill as it stands are approved, affecting such a large area of common land, it would create a bad precedent for other areas which we might be asked to consider in due course.

Finally, I welcome the Instruction of the noble Baroness which I believe is appropriate. We should certainly ask the Committee to look at the points which she rightly made.

7.3 p.m.

Lord Sandys

My Lords, in rising to address your Lordships in this Second Reading debate I should like to thank my noble friend Lord Colville of Culross for introducing this important measure and the interesting way in which he did so. I should also like to thank the other speakers.

I must declare an interest as president of the Worcestershire branch of the Council for the Protection of Rural England. Our county is very much indebted to the late Lord Hampton, who established the branch more than 35 years ago. It was an enormous pleasure this evening to listen to his son speak on the very same subject of the protection of the most important feature in the Worcestershire landscape.

One of the most important activities of the Worcestershire branch of the Council for the Protection of Rural England is to monitor every stage of the planning process in the county. Every planning application which is relevant to the important rural area of the county is examined by a team of volunteers scattered the length and breadth of the county. As the county is more than 70 miles wide, that is a considerable task. On the Worcestershire side of the old county of Worcestershire we are able to fulfil our task, as Herefordshire does on the other side. In a week in which my right honourable friend the Secretary of State, Mr. Howard, has approved the Hereford and Worcester county structure plan—with 28 amendments—with words of commendation for the way in which the county planners and the county planning process operates, we should take note of that, because the context of the Malvern Hills in the planning scene is very important.

There is nothing in the Explanatory Memorandum which indicates the very exalted status of the Malvern Hills in statutory terms. One can only imagine that the author felt that it was self evident, but perhaps I may be permitted to fill that gap. I hold in my hand the Hereford and Worcester county landscape study of 1990, which sets out in Appendix I the details of the designation of the Malvern Hills as an area of outstanding natural beauty. The year of designation was 1959, and the area concerned is very substantial. It is 104 square kilometres, which I believe is 65 square miles. The document also reminds us of the object of establishing areas of outstanding natural beauty, which is: to conserve the natural beauty of such areas; to have regard to the economic and social well-being of the areas; and to meet the demand for recreation so far as it is consistent with the conservation of natural beauty and the needs of agriculture, forestry and other users.

Only 11 per cent., or some 3,000 acres, of that large area of land is in the hands of the Malvern Hills conservators. The conservators are, in a sense, guardians acting on behalf not only of the county but also responsible to the planning authority for their own management plan for the part of the Malvern Hills within their administration.

Perhaps I may dwell here on the presentation of the Bill because the fact that the Bill empowers the conservators to act without authority and outside the planning Acts is easily misunderstood. I assure your Lordships that every inch of the Malvern Hills forms part of the area of outstanding natural beauty. In addition, the whole of the hills is a site of special scientific interest of earth science importance. It is also an area of great landscape value and designated a full conservation area. Putting all those statutory provisions together, one has an official recognition which is almost without equal in the United Kingdom. Therefore, in planning terms the Malvern Hills have a very exalted status.

Let us look, therefore, at the relationship between the conservators as a conservation body and the planning authorities. I welcome the fact that my noble friend Lord Colville reminded us that the conservators were forerunners and pioneers. A full five years before the Local Government Act reached the statute book in 1889 they were responsible for the second important conservation Act, the Epping Forest Act 1878, which was the first in the United Kingdom and an important Act in its own right. Therefore the Malvern Hills conservators, in promoting their actions 109 years ago, accomplished an astonishing pioneering job. They are warmly to be commended for their achievements in that period.

Perhaps I may consider the period in which they made such achievements. It is important to realise what was going on at that time. One of the most important events for the Malvern Hills was the arrival of the railway. My noble friend Lord Colville may be able to tell us about it in more detail. Land was acquired under the Lands Clauses Consolidation Act 1845, and a tunnel was driven through the hills. Compensation was duly applied.

Viscount Colville of Culross

My Lords, it was called the Railways Clauses Consolidation Act.

Lord Sandys

My Lords, I accept entirely that correction. That event gave a warning to all those anxious to preserve the hills. The noble Baroness told us of the ancient and historic importance of the hills. A large number of fossils came to light in the railway cutting. That is most significant. We have not yet heard the whole story of the Malvern Hills by any manner of means. As an archaeological relic from the millennia it still has much to tell us through its water resources, rocks and many other features.

It would be valuable to dwell on another aspect of conservation which the conservators promote in the Bill. It is a matter of land acquisition and land disposal. I entirely understand what the noble Baroness, Lady Nicol, said about land disposal under the proposed Clause 6. Once again it is probably a matter of presentation. The word "exchange" appears, and reference is made to better management. But the provision opens the field widely. Future conservators might be constrained by pressures to sell a substantial area. The Bill will permit them to do so. That might be done in circumstances about which we have no knowledge at present. Such a power is one of the most important provisions in the Bill. Clause 6 is the clause to which I object most strongly. With regard to the remainder, the conservators are warmly to be supported in their aim better to manage the hills in conjunction both with the local authorities and with other conservation bodies.

I was dismayed to hear that certain bodies had had insufficient time allotted to them to consult prior to the Second Reading. I have no further knowledge about that matter. I am not a conservator. However, examination of the clauses at Second Reading has brought out many factors. If noble Lords permit it later, the noble Baroness's instruction will empower the Select Committee to look closely at the matters concerned.

Finally, it is so easy to say with hindsight that many of the matters could have been picked up in earlier acts which the conservators promoted. It could be said that they have done extraordinarily well in preventing the further quarrying of the hills and the removal of valuable features. The noble Viscount and the noble Lord, Lord Hampton, referred to unfortunate scars which are extraordinarily difficult to erase. It is difficult to return the land to its original contours. Nevertheless, the conservators in 1884 set that aim in motion. I believe that it deserves the support of your Lordships and a wide range of the public.

7.15 p.m.

Baroness Hilton of Eggardon

My Lords, it is a private Bill and I therefore do not speak on behalf of the Labour Party. However, it is the view of many of my colleagues that open spaces should be preserved for public access and that the Bill would jeopardise that important principle.

Several noble Lords and in particular the noble Baroness, Lady Macleod, have made cogent criticisms of the Bill, which seeks sweeping new powers for the conservators. In my view the Bill appears to be defective in two major respects, both of which have already been referred to by several noble Lords. As my noble friend Lady Nicol said, the Malvern Hills Act 1930 laid down that the conservators should keep the Malvern Hills "unenclosed and un built on". The proposals in the current Bill fail on both those counts.

First, Clause 17 would give the conservators power to regulate or prohibit access to any part of the Malvern Hills and to fence and enclose those parts. Moreover, they would have the power to erect notices prohibiting access and anyone contravening such a notice would be guilty of a criminal offence. As several noble Lords have already said, trespass on the Malvern Hills would thus be criminalised.

The second respect in which the Bill appears to fail is with regard to not building on the hills. Under Clauses 3 and 10 the conservators seek powers to build refreshment facilities, information centres, offices and residential accommodation for their staff. Moreover, under Clause 11 they would be able to let premises which were surplus to their own requirements, as has already been said. There is clear temptation to build larger offices than the conservators need and thus to earn income by letting out the surplus space.

We are short of open spaces in this country and those that we have are increasingly tamed and sanitized. The chief pleasure of those who like to walk or ride in the hills is that they are areas of natural beauty unencumbered with roads, buildings, fences or notices. I therefore urge the House to agree with the Instruction of the noble Baroness, Lady Macleod, to the Select Committee.

7.17 p.m.

Viscount Goschen

My Lords, it may be helpful if at this point I give the House the Government's view on the Bill.

We have considered the proposals in the Bill and are broadly content with the purpose of the Bill. Some points of detail have been taken up with the agents for the promoters, as have some points of greater substance on Clauses 16 and 22 relating to by-laws and abandoned vehicles. Apart from those matters, the Government are taking their usual neutral stance on Private Bills.

The committee will be in a better position to consider points of detail and hear expert evidence on them. I hope therefore that the Bill will be given a Second Reading and allowed to proceed to Committee for detailed consideration.

7.19 p.m.

Viscount Colville of Culross

My Lords, although I could answer all the points that have been raised, I suspect that I should try the patience of your Lordships if I went into too much detail. However, there are a number of matters which I ought to touch upon. First, all noble Lords who have spoken may be assured that the Members of the Select Committee will have a copy of the debate on Second Reading; it follows automatically with an instruction. They will therefore be able to read and pay attention to points that your Lordships have made.

Secondly, I do not believe that one single point that was raised during the debate by way of criticism of the Bill has not already been raised in a number of petitions. Those issues will therefore automatically be considered by the Select Committee.

There are two major themes which run throughout the speeches of noble Lords. One turns upon the phrase "the Malvern Hills". For statutory purposes, the Malvern Hills are more than the geographical feature that noble Lords evidently know so well. For the purposes of the legislation, the term "Malvern Hills" covers all land within the jurisdiction of the conservators. Therefore it is quite fanciful to consider that there is any proposition to build tower blocks halfway up the side of the mountain. What is possible is that, if there is land within the jurisdiction of the conservators within an urban area, they should be able to build, to buy or to lease offices there for their own purposes. As I see it, the present offices are in the offices of the firm of private solicitors of the clerk to the conservators.

If Clause 11 states that the conservators can build and let, it is certainly not intended to do so. I have been assured that that is not what the draftsman proposed, nor is it the intention of the promoters to do any such thing. What the conservators envisage is that they might acquire a building in order to use it for offices, find that it is larger than they need and be able to dispose by lease of whatever is surplus.

That brings me to a point which is echoed in many of the petitions, particularly that by the Open Spaces Society, the ramblers and others aligned with them. They all applaud—as a number of noble Lords have done today, including the noble Lord, Lord Moran —the existing conservators. I find it difficult to believe that your Lordships envisage that the electoral process, which I think will be carried out at the end of the year, will produce a new breed of conservators with horns and a tail which is quite different from the kind that previously existed.

I was asked by the noble Baroness, Lady Nicol, why the conservators will be elected for four years instead of three. The answer is that seven of them at the moment are district councillors of the Malvern Hills District Council who are now elected for four years apiece. It is therefore thought entirely sensible to bring into line all the rest of the conservators with the electoral arrangements of the large local authority representation which exists now and which it is proposed should continue. I suggest that one must not be too fearful of the way in which future conservators will carry out their duties.

My noble friend Lord Sandys was good enough to explain the substantial planning constraints which would prevail in case of some absurd suggestion about development by the conservators. All the developments that have been spoken about would require planning permission; nothing in the Bill interferes with that. Indeed, I can tell noble Lords who raised the point that nothing in the Bill interferes with Section 194, which was mentioned by the noble Lord, Lord Moran. Nothing can be done to infringe the rights given under that section without the consent of the Secretary of State. The matter is also included in one of the petitions.

I am sorry that there are those who think that the Bill has been rushed. As noble Lords have been told, consultations will take place on Wednesday and they are certainly not the end of it. I was hoping—and I believe that noble Lords are prepared to do this—that your Lordships would at any rate get the Bill on its way through Parliament so that we can make progress in parliamentary terms with what will inevitably be a fairly long and complicated procedure.

Excluding the public and turning the ignoring of notices which are posted into a criminal offence are points raised in petitions. This is not just for New Age Travellers. Is it really to be supposed that when the fire authorities say that the hills have become a fire risk there is no duty upon the conservators to try to keep the public out for their own safety? If they try to do that, is it not conceivable that they may need powers to enforce the notices that they have posted? At any rate, the Select Committee will look at all that too.

The only other points on which I have time to touch are, first, that the sale of land will not affect any land which is held as common. There is already power to deal with something in the order of a quarter of an acre and exchange land in its place. The main thing in the Bill is that any sale will require the Secretary of State's consent. I can tell noble Lords that in affairs of local government that consent is not lightly given unless there is a very good reason. I am told that only 2 per cent. of the land could be affected by Clause 6 of the Bill. Clause 7 does not allow capital to be used as income. On the contrary, it makes sure that the two forms of money are kept separate.

The conservators cannot remove placards and fly-posting at the moment: they have no powers to do so. In answer to the noble Lord, Lord Moran, yes, "reasonably" in Clause 18 would be acceptable. However, once the Bill has been published, no amendments to the text can be made until the matter goes to a Select Committee. Therefore, that will be the stage at which it will be done.

I believe that I have dealt with the points raised by the noble Baroness, Lady Hilton of Eggardon, and I hope that I have dealt with all those raised by the noble Lord, Lord Hampton. I certainly tried to do so and to cope with most of those raised by the noble Baroness, Lady Nicol.

One point which the noble Lord, Lord Hampton, raised is something to which I should return in conclusion. The legislation which ended with the 1930 Act has served the conservators and the area pretty well. I should have thought that your Lordships would have appreciated what some of us can remember: what has happened by way of changes from the 1930s to the present day. The changes, in terms of mobility and attitudes, the desire of people to enjoy open countryside—as many noble Lords have said—and to enjoy fossils, flowers and the wildlife have increased out of all recognition since the 1930s. So, of course, has the intense interest of commoners in their own rights. The pressures and conflicts on a piece of land of this nature are quite different from what they were 60 years ago. I should have thought that your Lordships would see that, as a matter of principle, it was wholly reasonable to try to bring the legislation up to date, subject, of course, to getting it right. That is the point of the Select Committee procedure. It is the point of the petitions and the point of my noble friend's instruction. If your Lordships will give the Bill a Second Reading today, that is what will happen. I do not see my noble friend Lady Macleod acting in a rearguard capacity like Caractacus. I take her intervention to be a much more constructive one, to try to get it all right. She nods in agreement with me.

That is what I should like to see happen, I believe that we have all the mechanisms in place to ensure that it will happen. I hope that noble Lords will give the Bill a Second Reading.

Lord Moran

My Lords, before the noble Viscount sits down, does he agree that, in this Bill and any Bill proceeding from this House, we ought not to assume that those who will exercise power under it will always, far into the future, be balanced and reasonable? Therefore, we ought only to give the conservators powers in the Bill that they could reasonably need.

Viscount Colville of Culross

Yes, my Lords, I entirely accept that. The difficulty about making a Second Reading speech, particularly by way of reply in the face of a large number of extremely detailed points, is that I cannot go into the detailed drafting of the clauses as they stand. If noble Lords have not been convinced by the way in which it was put, perhaps I may respectfully suggest that it could be because they have not seen some of the subtleties by which safeguards have been introduced.

The petitions have concentrated on many of those matters and upon the ability of conservators, under the Bill, to do far more than people think they ought. To deal with that is the job of the Select Committee, but not of your Lordships on Second Reading. I have tried to explain that, while there are many safeguards of which I have given examples, there are many more in the Bill which will make sure that the conservators do not overstep a reasonable mark.

On Question, Bill read a second time and committed to a Select Committee.

7.30 p.m.

Baroness Macleod of Borve rose to move, That it be an instruction to the Select Committee to whom the Bill is committed that—

  1. (a) they consider to what extent if any the powers proposed to be granted by the Bill go beyond what is necessary for the conservators properly to manage the land within their jurisdiction;
  2. (b) they pay particular attention to the provisions which would impede or restrict public access; and
  3. (c) they satisfy themselves that any commercial developments which might result from the Bill's passing into law would be consistent with the status of the Hills as a valuable part of the national heritage.

The noble Baroness said: My Lords, I beg to move that the instruction in my name be agreed to.—(Baroness Macleod of Borve.)

On Question, Motion agreed to.