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Lord Berkeley: I thank the Minister for those remarks which I shall study carefully. Before I withdraw the amendment I should like to point out that I was aware, of course, of the offer to relocate in Cricklewood, but Cricklewood is not in east London. It is quite a long way away. I hope that the Minister's words indicate that encouragement to LCR should be given to negotiate quite quickly on a rail freight terminal located somewhere there with continuity of operation. That is the critical thing. On that basis, I shall see how we get on, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Acquisition within limits shown on deposited plans]:
Lord Cornwallis moved Amendment No.6:
The noble Lord said: I shall speak also to Amendments Nos. 7, 22 and 25. Amendments Nos. 6, 7 and 22 are of course paving amendments. The guts of the amendment are in Amendment No. 25.
At the risk of stating the obvious, I should first point out that we are dealing with the construction of a railway. As such, it differs from the construction of a road or other works because the width of the permanent way is narrow and the contractor must use adjoining land for access, materials, equipment and other associated purposes. Partly for that reason, but also because of the precise route, the associated engineering works and other elements of the project have not been designed in detail. The land authorised to be acquired under the Bill is substantial.
The Bill as drafted, particularly Clause 4, will enable the promoters to enter upon and compulsorily acquire any or all of the land shown on the deposited plans as being within the limits of deviation of the proposed works.
The promoters have acknowledged on a number of occasions that they do not need to acquire permanently all, or anywhere near all, of that land, because a great deal of it will be required only temporarily during the construction period.
The amendments recognise that the current owners have the better long-term claim to the ownership of that land which is used only temporarily. The promoters have accepted in principle that they should not take permanently land which they need only temporarily, but the Bill fails, except to a very limited extent, to give effect to that principle.
The boundaries of the land which is required permanently for the engineering and associated works for the operation of the railway along much of its length are not known now and may not be known at the time that possession of the land is taken. Counsel for the promoters said that that would be the case when addressing the Select Committee on day 15 (page 43).
Since permanent acquisition would deprive the owner of his legitimate long-term interest, it would be better to provide that the land required by the promoters is available to them for all purposes at the outset, but to settle the boundaries of that land which is required permanently at the time that the permanent boundary becomes evident.
The purpose of the amendments is to enable the owner of the land, if he or she so desires, to counter the notice to treat for the permanent acquisition and to convert it to an irrevocable licence to occupy the land for the construction of the railway. If the landowner does serve notice in accordance with the amendment, that in no way affects the right of the promoters to occupy all of the land which they say they require for the purposes of constructing the line. The service of notice and counter-notice will create an irrevocable right to take possession of and use the land without any delay or further administrative problems. In fact those carrying out the work on the ground would have no need to be aware of the status under which they have the use of the land.
At the time the boundary of the land needed permanently for the railway and its associated engineering works becomes apparent, the promoters have the power to transfer the ownership of that land
There are obvious advantages in the promoters being able to deal with the acquisition of the land on the basis of certain knowledge of what is required rather than guesstimates.
The occupation of the remaining land is temporary only, but it is available to the promoters until the work on the railway is finished and for a period of 12 months thereafter. The conditions for the occupation, restoration and return of the land are already included in Schedule 5 to the Bill as they may apply to certain specified areas. The same regime will apply to any other areas that may, on the service of a notice in accordance with the amendments by the owner, be used on a temporary basis.
There is a right within the amendment for both parties, if in dispute, to go to arbitration using the provisions which are already in the Bill. The effect of the whole amendment, as I stated earlier, is to establish an irrevocable right for the promoters to occupy any land that they require during the period of construction. There seems little reason therefore for the need to go to arbitration. Likewise, it seems extremely unlikely when the boundary lines of the completed project have been clearly drawn and fenced that there will be any difficulties with the owner of any land.
I know that the amendments appear complicated. When I first saw them I was somewhat aghast at having to propose them, but by introducing one piece of paper they bring certainty to the acquisition of the land. The Bill already requires a notice to be served specifying the land to be acquired and the normal processes then require that land to be conveyed.
I seek to interpose one piece of paper between those two stages to say, "Hang on". The promoters do not know what they need to own. So these amendments will give them the use of the land for the construction period. They will then be able to take permanently that land which they need permanently when the boundaries have been established. I beg to move.
Lord Stanley of Alderley: The noble Lord, Lord Cornwallis, has explained clearly why the amendment is so necessary. I therefore find it extremely difficult to understand why it is being resisted, bearing in mind that the Select Committee of this place supported such a position in its interim report of 25th July. That report was acknowledged by the promoters in their commentary published on 30th September which stated:
That sounds fine but, sadly, the promoters have not honoured that promise. Indeed, following that assurance in the first 10 lines there follows 11 lines of
Therefore, I hope that the Committee will listen very carefully to how my noble friend answers my queries on the last 11 lines of the promoters' commentary, which backtrack on the first 10 lines. First, is it not a fact that the promoters have committed themselves only to discuss the use of the land taken temporarily? Secondly, is it right that in that discussion, if one can call it that, they can use the threat of compulsory purchase to aid their case? Thirdly, is it right that the use of the Crichel Down rules, if one can call them rules, carry little weight in this case? They are not binding; they are only a protocol. They carry no certainty, in particular as regards timing and price. And they have no relevance whatever to land required only temporarily, which is what we are talking about.
Fourthly, the promoters have stated that farmers whose land is definitely required only temporarily will be given the opportunity to retain the freehold. But the promoters have frequently stated that it is impossible for them to know definitely what land they want. Will my noble friend please tell me definitely what "definitely" means in this definite case? Fifthly, does my noble friend accept that the promoters have promised only to negotiate with the farmers to return the land, but that they, the promoters, will retain the power to retain the freehold if they decide they do not like the terms? Sixthly, will my noble friend tell the Committee what the promoters mean by "other interest or adverse rights in the land" and why that allows them to opt out of the principle of returning the land to the original owner? Seventhly, and finally, is not the Secretary of State acting as judge and jury in that he can determine whether a suitable tenancy, licence or option to purchase has been offered?
I have mentioned a few of the problems which could arise if the amendment is not included in the Bill. My noble friend might say that I should have a little more trust and faith in the promoters honouring the first 10 lines of their comment and forgetting the last 11. In any event, if they blatantly ignore the opinion of your Lordships' Select Committee--a point raised by the noble Lords, Lord Clinton-Davis and Lord Harris--I suppose that we could ask for a judicial review. I shudder at the thought of it!
While I am on the subject, perhaps your Lordships listened to the noble Lord, Lord Peston, yesterday, when he made a somewhat similar remark. He said:
At the moment, neither I nor the noble Lord, Lord Cornwallis, believe that that is the case. Furthermore, I must remind my noble friend that the promoters have known about this amendment since 18th July and have raised no particular objection. Therefore, I cannot see that they can raise any particular substantial objection now.
Your Lordships have a duty to ensure that legislation is as clear and litigation-free as possible, and certainly as just and as fair as possible. Therefore, I hope that my noble friend will be able to accept the amendment so as to save your Lordships having to return to it on Report and at Third Reading.
Page 2, line 16, at beginning insert ("Subject to paragraph 12A of Schedule 4 to this Act,").
"The necessary machinery will be put in place so that those farmers whose land will definitely only be required on a temporary basis for the construction of the CTRL, and who would like to farm the land in question once the CTRL construction works have been completed will be given an opportunity to retain the freehold interest in the land with the necessary temporary occupation construction activities being carried out either under a tenancy, or under licence coupled where necessary with an option to purchase to protect the right to occupy against successors in title".
"I hope that ... the landowners will be dealt with fairly".--[Official Report, 30/10/96; col. 336.]
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