HL Deb 04 July 1994 vol 556 cc1001-5

37 Schedule 8, page 117, line 29, at end insert:

("Terms on which orders to be exercised

  1. .—(1) The owner of the interest against whom the compulsory rights order (in this paragraph referred to as "the owner") has been made shall be entitled to—
    1. (a) payment on the basis of either—
      1. (i) the open market value of the rights granted as would have been fair and reasonable if the agreement had been made between a willing grantor and a willing grantee, or
      2. (ii) the compensation for the losses caused to him assessed in accordance with sections 17 to 23 of this Act,
      • whichever is the higher, and
    2. (b) secure such terms, guarantees and other security from the person entitled to occupy the land in respect of which the compulsory rights order is conferred (in this paragraph referred to as "the operator") as are necessary to protect the owner from any loss, damage, claims or other costs related to the exercise of the compulsory rights order.
  2. (2) For the purposes of sub-paragraph (a) (i) of this paragraph, the assessment of the open market value shall take into account—
    1. (a) the basis on which the operator has entered into agreements with the owners of other interests to permit the working of the same coal deposit, and
    2. (b) the basis on which the owners of other interests have entered into agreements with the operator or other mining companies for the extraction of coal on comparable sites.
  3. (3) For the purposes of sub-paragraph (a) (i) of this paragraph, the fact that the operator is in or to be in, a special position by reason of his having secured the licence under Part II of this Act to the exclusion of others shall be ignored.")

The Commons disagreed to this amendment but proposed the following amendments in lieu there of—

37A Schedule 8,page 126, line 16, after 'section' insert:

  1. '(a) at the beginning there shall be inserted the words 'Subject to subsection (3A) of this section,"; and
  2. (b)".

37B Page 126, line 17, at end insert:

'(5) After that subsection there shall be inserted the following subsections—

"(3A) Where—

  1. (a) any compensation is payable for any year by virtue of this section in respect of any holding, and
  2. (b) the amount of that compensation falls to be calculated in accordance with section 18 of this Act by reference to the market value of rights which, if the compulsory rights order were not in force, could not be conferred for that year or any part of it except by or with the consent of one or more persons who are included in the persons directly concerned but do not fall within subsection (3) of this section,

(3B) Subject to subsection (3C) of this section, the persons entitled under subsection (3A) of this section to a share of any compensation shall include persons whose participation in or consent to the conferring of any right would be required if the right were conferred at some time after the beginning of the year or part of a year in question; and any apportionment under subsection (3A) of this section shall take account of the length of the period for which any person is, during that year or part of a year, a person without whose participation or consent any right could not be conferred.

(3C) No person shall be entitled under subsection (3A) of this section to any share of any compensation in respect of any such easement or right as might give rise to an entitlement to compensation under section 31 of this Act."

(6) Subsection (4) of that section shall cease to have effect.

(7) Sub-paragraphs (5) and (6) above shall not apply in relation to any compulsory rights order confirmed before the restructuring date.

Calculation of compensation

15A. In relation to any compulsory rights order confirmed on or after the restructuring date the following section shall be substituted for section 18, that is to say—

"Calculation of compensation under section 17.

18 .—(1) The compensation payable for any year in respect of a holding to which section 17 of this Act applies shall be a sum equal to the annual borrowing cost for that year of the market value of the rights conferred by the compulsory rights order in relation to the holding.

(2) For the purposes of this section the market value of any rights conferred by a compulsory rights order shall be equal to the amount which, as at the date of entry, would (apart from the order) represent the fair market price, as between willing and independent parties, for the grant of those rights by a person entitled to grant them and for the period for which the order is to have effect.

(3) In calculating for the purposes of this section the fair market price for the grant of any rights, due allowance shall be made for any entitlement to compensation which may arise, otherwise than by virtue of section 17, under any of the provisions of this Act.

(4) For the purposes of this section the annual borrowing cost for any year of any amount ('the market price') is the aggregate sum which would fall to be paid in that year by way of payments of interest and re-payments of capital if the market price had been borrowed on the date of entry on terms which—

  1. (a) required interest to be paid and capital to be repaid by way of the relevant number of equal annual instalments; and
  2. (b) provided for interest on outstanding capital to become due immediately before the time for the payment of each instalment, at an annual rate equal, as at the entry date, to the rate prescribed under section 35(8) of this Act;

(5) Nothing in section 17 of this Act or this section shall confer any entitlement to compensation in respect of the annual borrowing cost of—

  1. (a) any amount representing the value of any person's interest in coal, or
  2. (b) any amount representing the value of any opportunity arising by virtue of an interest or right in or in relation to any land to obtain or make use of any rights to win, work or get any coal.

(6) Where the period for which a compulsory rights order is to have effect is extended under this Act, section 17 of this Act and this section shall have effect in relation to the additional period as if the rights conferred for that period had been conferred by a new compulsory rights order."

15B. Sections 19 and 20 (additional annual compensation and special compensation for cost of removal) shall not have effect in relation to any compulsory rights order confirmed on or after the restructuring date.'.

37CPage 126, line 24, leave out 'In section 23A(4)' and insert:

'(1) In section 23A'.

37DPage 126, line 25, after 'agriculture)' insert:

  1. '(a) for the words "sections 18 and 19", wherever they occur, there shall be substituted "section 17"; and
  2. (b) in subsection (4)'.

37EPage 126, line 27, at end insert:

'(2) Sub-paragraph (1) (a) above does not apply in relation to any compulsory rights order confirmed before the restructuring date.'.

37FPage 127, line 28, leave out sub-paragraph (2) and insert:

'(2) In subsection (2) of that section, for "(3) and (4) of section seventeen of this Act, the provisions of sections eighteen to twenty of this Act" there shall be substituted "(lA)and(3) to (3B) of section 17 of this Act and the provisions of section 18 of this Act".'.

37GPage 128, line 6, leave out second 'subsection' and insert 'subsections'

37HPage 128, line 11, after 'order' insert:

'(2B) For the purposes of subsection (2) of this section the annual value of any land for any year shall be taken to be an amount equal to the annual rent at which, immediately before the beginning of that year, that land, in the appropriate circumstances, might reasonably have been expected to be let from year to year under a contract of tenancy whereby the tenant undertook—

  1. (a) to pay all usual tenant's rates and taxes and to bear the cost of the repairs and insurance and the other expenses, if any, necessary to maintain the land in a state to command that rent, and
  2. (b) not to carry out any operations on the land, or to make any change in the use thereof, for which permission would be required under Part III of the Act of 1990 or Part III of the Town and Country Planning (Scotland) Act 1972, except any operations for which such permission has been granted and is in force immediately before the beginning of that year.'

371 Page 128, line 12, leave out from 'section,' to end of line 13 and insert for the words before paragraph (a) there shall be substituted—

"(3) For the purposes of subsection (2B) of this section, the appropriate circumstances—".'.

37JPage 134, line 10, leave out 'In paragraph 31 of Schedule 6' and insert:

  1. '(l)In paragraph 1 (2) of Schedule 6 (changes in right of occupation), for "seventeen to nineteen" there shall be substituted "17 and 18".
  2. (2) In paragraph 2 of that Schedule (new tenancies), for "seventeen to twenty" there shall be substituted "17 and 18".
  3. (3) Paragraphs 8 and 9 of that Schedule (which relate to compensation under section 19 but are applied in relation to compensation under Schedule 5) shall cease to have effect except so far as applied by paragraph 10 of that Schedule.
  4. (4) In paragraph 26 of that Schedule (apportionment in respect of parts of a year) after sub-paragraph (4) there shall be inserted the following sub-paragraph—
  5. "(5) This paragraph shall not apply in relation to any compensation the entitlement to which is apportioned in accordance with section 17(3A) of this Act."

37K Page 134, line 13, at end insert:

'(6) Sub-paragraphs (1) to (4) above shall not apply in relation to any compulsory rights order confirmed ' before the restructuring date.'.

37L Page 156, line 51, at end insert:

'6 &7 Eliz. 2.C.69. The Opencast Coal Act 1958. Section 17(4). Sections 19 and 20. In Schedule 6, para-graphs 3, 7, 12 and 22.'

37MPage 158, line 11, at end insert:

'1986 c. 63. The Housing and Planning Act 1986. In Schedule 8, paragraph 8.'
Lord Strathclyde

My Lords, I beg to move that the House do not insist on their Amendment No. 37 to which the Commons have disagreed but do do agree with the Commons in their Amendments Nos. 37A to 37M in lieu thereof.

Amendment No. 37 seeks to provide that compensa-tion for compulsory rights orders made under the provisions of the Opencast Coal Act 1958, as amended by this Bill, should be based on market values. In view of the strong support for that amendment, the Government have accepted the principle. But the specific amendment approved by this House would have been very difficult to put into practice within the framework of the Opencast Coal Act, and the amendments in lieu which have been agreed by another place in our view provide a practical and effective replacement. I hope that that meets with the approval of the House. I commend to the House Amendments Nos. 37A to 37M.

Moved, That the House do not insist on their Amendment No. 37, to which the Commons have disagreed, but agree with the Commons in their Amendments Nos. 37A to 37M in lieu thereof.—(Lord Strathclyde.)

Lord Morris of Castle Morris

My Lords, when we debated the amendments proposed by the noble Lord, Lord Stanley, at Third Reading and I saw the Government Benches steadily filling as the day wore on with noble Lords, not all of whom were immediately recognisable to me either by face or name, I felt, as did Richard III at the Battle of Bosworth, when, in Act V, scene in of Shakespeare's play, he says: What says Lord Stanley? will he bring his power? For he did, and they came. And they won a famous victory by 83 votes to 72 and gave us an agreeable climax to what had been a moderately satisfying day.

So we hoped it might be when your Lordships' amendments were discussed in another place on 28th June. Alas, it was not to be: as I read the account of the debate in the official record I found myself steadily relapsing into my usual gloom about the Bill, and, in particular, about the prospects for our countryside, threatened by opencast mining as it is now visually despoiled by acres of oilseed rape.

In speaking to Amendments Nos. 37 and 37A to 37M, I should like, with the permission of the House, to include what few things I have to say about Amendments Nos. 38 and 38A and get them out of the way. I note that the Minister in another place, in tones which suggested that he was giving us the crown jewels, announced the few sad compromises he was mindful to make. "This afternoon", he cried, my honourable friend the Minister for Local Government and Planning announced his intention—in the light of the response that he has received"— we waited with breath that could not have been more bated— of removing the reference to the national interest in MPG3". The official record does not record any spontaneous outburst of applause, Order Papers were not waved. Honourable Members were not assisted from the Chamber in a state of shock. So much is clear from the Minister's next sentence: I am sure that that announcement will be widely welcomed"— an obvious feed line to his own supporters, which seems to have been ignored, for he went on with increasing desperation: and I consider it a useful clarification".—[Official Report, Commons, 28/6/94; cols. 712–3]. Well, he had to say something, I suppose. But it is thin, and weak, and watery. The amendment moved by the noble Lord, Lord Stanley, provided for compensation based on market values and made clear and simple arrangements for it. The Minister was not having any of that. At col. 713 he stated, We have accepted the principle that lies behind that amendment, but we have sought to table a practical and effective replacement for it". Brisk and bracing words, my Lords, are they not? But the Minister omitted to show us in what ways the amendments moved by the noble Lord, Lord Stanley, were impractical or effective. He assured us that the coal in the ground belongs not to the landowner but to the nation. That part of his amendment is consistent with the principles established by the decision of BP v. Ryder in 1988. He ignored the obvious facts that in the future opencasting will be a continuing and growing problem in this country, that he was offering a few concessions to landowners but none at all to the public who will have to suffer the dirt, the dust, the noise, the destruction and the inconvenience, and none at all either to the local authorities which will have to pick up the bill for the road repairs.

Your Lordships' House will not be surprised that I find that view less than totally agreeable. But soon after that the Minister sat down; and so shall I.

On Question, Motion agreed to.