COMPULSORY ACQUISITION OF LAND BY NATURE CONSERVANCY FOR ESTABLISHMENT OF NATURE RESERVES

HL Deb 16 October 2000 vol 617 cc714-21

(". In section 17 of the National Parks and Access to the Countryside Act 1949 (compulsory acquisition of land by Conservancy for establishment of nature reserves), for the words "on terms appearing to them reasonable" there is substituted ", on reasonable terms,".").

The noble Baroness said: I refer to the provisions for compulsory purchase under the 1949 Act to be made consistent with those under the Bill.

In response to strong concerns voiced in Committee in the other place, the Government amended the provisions of the proposed new Section 28L(2)(a) to provide that, before acquiring an SSSI compulsorily, English Nature and the Countryside Council for Wales should show that they were unable to conclude a management agreement "on reasonable terms", rather than—"as originally drafted— terms appearing to them to be reasonable".

This amendment provided welcome recognition of a lack of balance in the arrangements for compulsory purchase. The ability to take a view on what is reasonable should not lie solely with English Nature or the Countryside Council for Wales but should also lie equally with the owner.

While an appropriate balance has been restored in the Bill between the interests of English Nature, the Countryside Council for Wales and owners, an inappropriate balance still persists elsewhere. In particular, Section 17 of the 1949 Act, which provides compulsory purchase powers in relation to national nature reserves, provides that land will not be compulsorily acquired unless English Nature and the Countryside Council for Wales are satisfied that they are unable to conclude a management agreement, on terms appearing to them reasonable".

The same issue arises here under the proposed new Section 28L(2) as originally drafted. The same correction should accordingly be made. The suggested amendment would ensure consistency among all the provisions relating to compulsory purchase of land by English Nature and the Countryside Council for Wales. I beg to move.

Lord Renton

I support my noble friend's amendment. Clearly, what we are dealing with here is something that requires an objective criterion because it will at times become judicial or quasi-judicial. For the people who make the decision to have the last word on terms appearing to them reasonable seems to be quite wrong in the circumstances. This is an important constitutional point and one which I very much hope that the Government will accept.

6 p.m.

Lord Whitty

We are repeating to some degree an earlier discussion. The amendment concerns the circumstances in which the agencies may proceed to acquire compulsorily any interest in land in relation to a national nature reserve.

The declaration of national nature reserve is at the heart of the agencies' statutory responsibilities. They have a significant statutory role under the 1949 Act in declaring land as a national nature reserve and ensuring once the declaration is made that the land continues to be managed satisfactorily. There are well over 200 such reserves in England and Wales, some in public ownership but the remainder owned privately and managed in accordance with an agreement with the agency. These are truly special sites, often providing substantial opportunities for study and research and in many cases enabling people to experience a particularly fine view of nature at first hand.

While land is not declared as an NNR without the consent of the landowner, there may be circumstances where the agencies have been unable to enter into or renew an agreement for management of it as a reserve. In those exceptional circumstances, the agencies have the power to acquire the land so that they ensure that it continues to be managed in ways which serve the national interest.

Once again, that power of compulsory purchase is very much a last resort. But in relation to the acquisition of land for national nature reserves, it does not appear to me unacceptable that the decision whether to make an order acquiring the land should turn on whether the conservation agency is able to conclude an agreement on terms appearing to it to be reasonable. Indeed, it is difficult to envisage how it could judge the reasonableness in any other way. It would have to decide whether it was acting reasonably. That would then be subject to appeal or to a court to judge the reasonableness.

As we argued in the earlier context, this is a standard approach adopted widely in legislation. I referred earlier to the terms of planning legislation when there is reference to its own opinion and environmental legislation where there is reference to reasonable opinion. There is a full and appropriate means to test the decision—whether the appellate procedure considers it reasonable. But in the first instance it must be for the agency to decide to follow a path which appears to it to be reasonable. The logic of that stands up. The precedent of earlier legislation stands up. There are means to test the decision were the reasonableness of the action to be challenged.

Lord Renton

In effect the Minister says that if the conservation body makes an unreasonable decision which appears to it to be reasonable, it cannot be challenged and will be binding. Surely that is wrong. I know that it has been part of our law for 50 years but surely it is time we had a look at it.

Lord Whitty

The fact that it has been part of our law for 50 years, not only in this context but also in planning and much other environmental legislation, should give us reasonable comfort that it works. I am unaware of any serious incident where the wording of the legislation proved a great problem and was the subject of challenge to those decisions. There may be other aspects of such challenges but the wording of the legislation and the requirement on the agency must surely be as described here. I hope that noble Lords can accept that.

The Earl of Caithness

In his reply, the Minister said that as regards the words, on terms appearing to them reasonable", there were full and appropriate means to test that decision. Are the full and appropriate means exactly the same full and appropriate means as those to test the words "reasonable terms"?

Lord Whitty

In so far as I understand the noble Earl's question, the answer is yes.

Baroness Hamwee

The Minister may have answered this question, but can the noble Baroness tell the Committee whether there has been a problem during the 51 years since this legislation was introduced? I do not mean this to be derogatory, but, while the amendment appears to be superficially attractive, if there has been no problem, as I suspect may be the case—there has to be reasonableness in assessing whether terms are reasonable to the agency taking a view—perhaps it is better to leave well alone.

Lord Renton

I hesitate to intervene again. However, if there has been no problem for 50 years, it does not mean that there never will be a problem. While we are considering this branch of the law surely we should try to get it right.

Lord Whitty

I cannot argue with that. There could well be a problem next week. The point is that we have had a great deal of experience and there has not been a problem. If a problem should arise in future, it may be of an entirely different order from that anticipated by the noble Lord, Lord Renton, and we should have to deal with it, as we should have to do should the issue referred to by the noble Lord arise. Prescient as we are as a Government, I do not think that we can entirely anticipate our future problems when we have had 50 years of relatively smooth running.

Lord Phillips of Sudbury

I find the Government's argument that the matter can always be tested in a court naive. For someone to have to go to the High Court on a judicial review in order to have an interpretation of a decision by an authority, with formidable costs and delay, scarcely constitutes a remedy. In this Chamber we need to be careful when saying that because there has been no problem over the past 50 years there is no problem. The problem is that the remedy is so hugely expensive and complicated that any normal citizen is scared off.

Lord Peyton of Yeovil

As the noble Lord said, there may not have been a problem. But when the Minister says that there has not been a problem for 50 years and that if one arises it will have to be dealt with, he credits the system with a speed in these matters that is not often demonstrated.

Baroness Hamwee

I hesitate to disagree with my noble friend, but it is only to a small degree. While agreeing about the cumbersome nature of our judicial system, the amendment does not alter that. If one disagrees with whether terms are reasonable or appear to be reasonable, the same remedies are available and the same processes would be followed.

Lord Phillips of Sudbury

We must continue this excellent debate! There is a difference. As drafted, the wording could be taken to be more subjective vis-à-vis the authority than the proposed change of wording. That is of help to the citizen and makes it a touch less formidable to dare to question the decision of the authority.

Lord Whitty

I am hesitant to intervene in this little spat on the Liberal Democrat Benches. I side with the noble Baroness, Lady Hamwee. Whatever the wording here and however we express the term "reasonableness", it does not alter the fact that the expense and problems would arise if the matter eventually came to court. But that would be a long way down the line because there is an appeal to the Secretary of State and there would be, therefore, a public inquiry, which is rarely as expensive as using the judicial system. That is the context in which reasonableness would be tested in the first instance, were there to be a complaint. I am not sure that the point of the noble Lord, Lord Phillips, about expense is relevant, except in very few cases. The test occurs at a much earlier stage.

Baroness Byford

I hesitate to come in at all after such eminent lawyers have spoken. I thank those who have contributed to the debate. I am not happy with the Minister's reply. He has not explained why the Government have changed the original wording. I seek leave to test the opinion of the Committee.

6.10 p.m.

On Question, Whether the said amendment (No. 510) shall be agreed to?

Their Lordships divided: Contents, 78; Not-Contents, 125.

Division No. 2
CONTENTS
Allenby of Megiddo, V.	Dean of Harptree, L.
Astor of Hever, L.	Dixon-Smith, L.
Beaumont of Whitley, L.	Elton, L.
Biffen, L.	Fookes, B.
Blatch, B.	Gardner of Parkes, B.
Bledisloe, V.	Geddes, L.
Boardman, L.	Glentoran, L.
Bowness, L.	Goschen, V.
Brabazon of Tara, L.	Hanham, B.
Bridgeman, V.	Henley, L.[Teller]
Bridges, L.	Hogg, B.
Brittan of Spennithorne, L.	Hooper, B.
Brougham and Vaux, L.	Howe, E.
Burnham, L. [Teller]	Hylton, L.
Buscombe, B.	Jopling, L.
Buxton of Alsa, L.	Kimball, L.
Byford, B.	Lamont of Lerwick, L.
Caithness, E.	Liverpool, E.
Campbell of Alloway, L.	Luke, L.
Carlisle of Bucklow, L.	Lyell, L.
Carnegy of Lour, B.	Mackay of Ardbrecknish, L
Clark of Kempston, L.	Mar, C.
Colwyn, L.	Masham of Ilton, B.
Cope of Berkeley, L.	Monson, L.
Courtown, E.	Montrose, D.
Cox, B.	Moynihan, L.
Craig of Radley, L.	Murton of Lindisfarne, L.
Craigavon, V.	Newton of Braintree, L.
Cranborne, V.	Northbrook, L.
Crickhowell, L.	Northesk, E.

Oppenheim-Barnes, B.	Shrewsbury, E.
Park of Monmouth, B.	Skelmersdale, L.
Peel, E.	Stewartby, L.
Reay, L.	Strathclyde, L.
Renton, L.	Swinfen, L.
Renton of Mount Harry, L.	Vivian, L.
Roberts of Conwy, L.	Waddington, L.
Seccombe, B.	Wade of Chorlton, L.
Selborne, E.	Williamson of Horton, L.
NOT-CONTENTS
Acton, L.	Hunt of Chesterton, L.
Addington, L.	Hunt of Kings Heath, L.
Ahmed, L.	Islwyn, L.
Alii, L.	Janner of Braunstone, L.
Amos, B.	Jay of Paddington, B. (Lord Privy Seat)
Andrews, B.
Archer of Sandwell, L.	Jeger, B.
Bach, L.	Judd, L.
Bassam of Brighton, L.	Kennedy of The Shaws, B.
Berkeley, L.	King of West Bromwich, L.
Bernstein of Craigweil, L.	Kirkhill, L.
Billingham, B.	Lea of Crondall, L.
Blackstone, B.	Lipsey, L.
Bragg, L.	Lockwood, B.
Brennan, L.	Lofthouse of Pontefract, L.
Brett, L.	Longford, E.
Brooke of Alverthorpe, L.	Macdonald of Tradeston, L.
Brookman, L.	McIntosh of Haringey, L. [Teller]
Brooks of Tremorfa, L.
Burlison, L.	McIntosh of Hudnall, B.
Carter, L. [Teller]	MacKenzie of Culkein, L.
Christopher, L.	Mackenzie of Framwellgate, L.
Clarke of Hampstead, L.	McNally, L.
Clement-Jones, L.	Maddock, B.
Clinton-Davis, L.	Mallalieu, B.
Cocks of Hartcliffe, L.	Mason of Barnsley, L.
Cohen of Pimlico, B.	Massey of Darwen, B.
Crawley, B.	Miller of Chilthorne Domer, B.
Currie of Marylebone, L.	Mitchell, L.
Darcy de Knayth, B.	Molloy, L.
Davies of Coity, L.	Morris of Manchester, L.
Dean of Thornton-le-Fylde, B.	Newby, L.
Dixon, L.	Nicol, B.
Donoughne, L.	Orme, L.
Dormand of Easington, L.	Patel of Blackburn, L.
Evans of Parkside, L.	Prys-Davies, L.
Evans of Temple Guiting, L.	Rendell of Babergh, B.
Evans of Watford, L.	Renwick of Clifton, L.
Falconer of Thoroton, L.	Rogers of Riverside, L.
Farrington of Ribbleton, B.	Sawyer, L.
Faulkner of Worcester, L.	Shepherd, L.
Filkin, L.	Simon, V.
Gale, B.	Stone of Blackheath, L.
Geraint, L.	Strabolgi, L.
Gibson of Market Rasen, B.	Symons of Vernham Dean, B.
Gilbert, L.	Taylor of Blackburn, L.
Goldsmith, L.	Thomas of Walliswood, B.
Gould of Potternewton, B.	Thomson of Monifieth, L.
Graham of Edmonton, L.	Thornton, B.
Greaves, L.	Turner of Camden, B.
Gregson, L.	Varley, L.
Hamwee, B.	Walker of Doncaster, L.
Hardy of Wath, L.	Walpole, L.
Harris of Greenwich, L.	Warner, L.
Harris of Haringey, L.	Warwick of Undercliffe, B.
Harris of Richmond, B.	Wedderburn of Charlton, L.
Harrison, L.	Whitty, L.
Haskel, L.	Wilkins, B.
Hayman, B.	Williams of Elvel, L.
Hogg of Cumbernauld, L.	Williams of Mostyn, L.
Hollis of Heigham, B.	Winston, L.
Howells of St. Davids, B.
Howie of Troon, L.	Woolmer of Leeds, L.
Hughes of Woodside, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.21 p.m.

Schedule 9 [Consequential amendments relating to sites of special scientific interest]:

Lord McIntosh of Haringey moved Amendment No. 511: Page 106, leave out line 1.

The noble Lord said: Amendment No. 511, together with Amendments Nos. 512 and 563, is consequential to Amendment No. 564. That amendment concerns the provisions in Clause 63 and Schedule 7, which extend the offence of prohibiting off-road driving so that it applies to mechanically propelled vehicles rather than to the more narrowly defined "motor vehicles". As the Bill stands, that extended prohibition would apply only in England and Wales. The purpose of Amendment No. 564 is to apply it also to Scotland. Other changes brought in by Amendment No. 564 are consequential.

The amendments can be made only by the Westminster Parliament rather than the Scottish Parliament because the subject matter of the Road Traffic Act 1988 is reserved under the Scotland Act 1998. It is essential that that area of law should remain the same in England, Wales and Scotland. We have a single Highway Code for England, Wales and Scotland, approved by the Westminster Parliament, and any generally applicable traffic law which motorists need to observe should be uniform throughout Great Britain.

The amendment also extends paragraph 3 of Schedule 7 to Scotland. If that paragraph were not included, paragraph 5 of the schedule would make it an offence in Scotland to use an invalid carriage off-road. That is not the case at present. Although the provision of the Chronically Sick and Disabled Persons Act 1970 amended by paragraph 3 is devolved, the Scottish Executive has asked for the amendment to be made in this Bill as it is purely consequential on the rest of Schedule 7 and would not otherwise be necessary. It is obviously in the interests of people with disabilities that the exemption should come into force at the same time as Clause 63 and the rest of Schedule 7.

Amendments Nos. 511, 512 and 563 concern what until now have been the only provisions in the Bill which extend to Scotland: paragraphs 1 and 2 of Schedule 9. They do not change the law in Scotland but merely reflect changes that this Bill will make by repealing provisions for England and Wales that will remain in force in Scotland. As Amendment No. 564 will add another Scottish provision, the drafting will be clearer if Clause 78 alerts the reader to all the provisions which will apply to Scotland rather than burying it in the schedules. I beg to move.

Baroness Carnegy of Lour

I thank the noble Lord very much for his explanation of Amendment No. 564. It was extremely difficult for someone such as me to understand what on earth the amendment intended. The noble and learned Lord, Lord Hope of Craighead, who I see is in his place, is of course a great expert on these matters and may have something else to say.

I believe that this is an example of devolution working properly. As the noble Lord said, Westminster asked the Scots Parliament whether it was in order for Westminster to legislate on this matter because it was necessary for it to do so, and that has happened. That is good news for devolution, and I am most grateful to the noble Lord.

Lord McIntosh of Haringey

It is even better than that because the Scottish Parliament has asked Westminster to include this provision in the Bill.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 512 to 514: Page 106, leave out line 5.

Page 106, line 7, at end insert—

("Harbours Act 1964 (c. 40)

. In Schedule 3 to the Harbours Act 1964 (procedure for making harbour revision and empowerment orders), in paragraph 1 (interpretation), for paragraph (a) of the definition of "sensitive area" there is substituted— (a) land within a site of special scientific interest (within the meaning of the Wildlife and Countryside Act 1981);"."). Page 106, line 37, leave out ("development)") and insert ("zone)").

On Question, amendments agreed to.

Schedule 9, as amended, agreed to.

Lord Whitty moved Amendment No. 515: After Schedule 9, insert the following new schedule—