Skip to main content

Schedule—(Minor And Consequentialamendments Of Act Of 1945)

Volume 446: debated on Wednesday 28 January 1948

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Amendments made: In page 16, line 6, after "made," to insert:

"and of any other provision referring to an objection such as is mentioned in either of those subsections."

In line 20, at end, insert:

"4. As respects Scotland, in the said section thirteen the reference to the War Agricultural Executive Committee shall include a reference to any committee exercising under any enactment relating to Scotland (whether passed before or after the commencement of this Act) and corresponding to the Agriculture Act, 1947, functions similar to those exercised by a County Agricultural Executive Committee established under the last-mentioned Act."—[Mr. Glenvil Hall.]

On a point of Order. May I raise a question as to why the new Clause on the Order Paper in my name—(Acquisition of land for military purposes to be subject to approval of local authority)—is not being called?

I beg to move, in page 17, line 9, to leave out paragraph 8.

As I understand it, the aim of this paragraph is to extend, geographically, the limits to which an authority may take water for the same purposes which a riparian owner would have at common law. The actual purposes for which they may take water are limited in lines 12 to 15 to the same limits that would be possessed by an ordinary riparian owner; that is to say, for use in his house, domestic use and for watering his cattle and matters of that sort which appertain to the ownership of the land. This paragraph, while not extending the limits of these purposes, does extend the geographical limits in which they may be applied. For example, they may be applied to a neighbouring town or factory which is not actually borne on the river.

10.30 p.m.

We have put forward this Amendment because we feel that the proposal in this paragraph is not desirable, nor is it necessary. I do not think I need remind the Financial Secretary what the law is in this matter, but I think I ought to remind him that rights in water are of two kinds, natural rights and prescriptive rights, and in this case we are dealing only with natural rights, that is to say, the rights of use and of not interfering with the flow of water. Any riparian owner, of course, in virtue of his possession of the property, has the right to use the water flowing through it for all reasonable uses, but he may in addition exercise extraordinary rights, providing in doing so he does not interfere with those lower down the stream who also have rights to the use of the water. The ordinary natural rights of watering cattle and so on do not have that restriction because the owner is unlikely to interfere with the flow of the stream by watering cattle, but when he exercises extraordinary rights, like impounding water in a reservoir or using it for a water mill, this may interfere with the amount of water available for his neighbours below.

We feel that here is a proposal to use water in an extraordinary way, but without the safeguard that the ordinary ratepayer and owner has to offer, namely, that it shall not interfere with those below him, because the ordinary ratepayer and owner, if he uses water for an extraordinary purpose, has to return it in the same volume and in substantially the same state that it was when he took the water out of the stream. We are wondering whether, if this water is used for a neighbouring town or factory, it would be possible to return it in approximately the same volume or approximately the same state of purity. It is proposed by Section 33 that, without purchasing the land, the Minister may be able to acquire easements and the power of restricting certain rights over that land. Now they want to add to these powers the powers to acquire rights to use that water in extraordinary ways.

I hope that to relieve our anxiety, the Government will be ready to give the assurance that these powers are going to be limited. We really want to know what the Government have in mind about this. Are they proposing to supply factories or neighbouring towns right away from the watercourse and to do other things which are bound to take a big volume of water away? It would seem that the Government want it both ways. They want the rights of riparian owners without carrying the liabilities or restrictions of riparian owners. I am afraid that the Government may become bad neighbours. Maybe they can take it on fair terms, but I want the assurance that that will be the case. Supposing that will not be the case, we feel there should be some indemnity to neighbouring owners who will be prejudiced in this way. I hope that I have made the point clear and that we shall get an assurance that will relieve the anxiety in our minds as to what is intended by the Government in wanting this part of the Schedule.

I think I can allay the fears of the hon. and gallant Gentleman. As he knows there is already power to acquire easements. That power is given by Section 7 of the 1945 Act. That power, however, can only be exercised subject to payment of compensation to persons affected by the acquisition of the easement and subject to the additional protection that the matter may have to be sent to the War Works Commission. Those are the circumstances in which an easement can be obtained. Under the paragraph which the hon. and gallant Gentleman has been discussing in the Schedule, the power to acquire a right to use water can only be acquired subject to the same conditions. Therefore, this power to acquire the right to use water is hedged about by the obligation to pay compensation in case of need, and by the protection of which I spoke. Then the hon. and gallant Gentleman was apprehensive lest the Government were taking powers to extend geographically. I think that was the phrase which he used. I do not feel that the Government are doing that. I gather from his argument that what he had in mind was that the Government were taking powers to cross the land of a riparian owner to a river. Of course, they have power to cross the land of a riparian owner to the river source—

The point which I was trying to make was that the Government might, as a riparian owner, take water from the river and not use it as a riparian owner on the tenancy they hold on the river bank, but convey it away for use on other premises—at a factory or town in the neighbourhod of, but not adjacent to, the actual water course.

The Government can acquire only the right which a riparian owner himself possesses. As the hon. and gallant Gentleman has pointed out, there are really two categories of right to take water from a water course. One is the right to take water for agricultural purposes, and the other the very different right to take it for what I may generally term industrial purposes, subject to an undertaking to replace in certain volume and condition. If the Minister exercises the right to acquire water from a source across the land of a riparian owner he can only do just what that riparian owner can do himself. He can only take the same volume as the riparian owner, and in accordance with the actual circumstances in which the riparian owner uses his land. That is to say, where it is for agricultural purposes, without the obligation to replace; and where it is for industrial purposes, with the obligation to replace. The Government can do no more than a riparian owner can. Certainly water can be taken across his land, and used, to the extent to which it can be lawfully extracted, for some purpose not on the riparian owner's land. Otherwise, the right to acquire would be useless.

Therefore, I hope the hon. and gallant Gentleman, when he realises that the right is limited, co-extensive only with the right of a riparian owner and coupled with the obligation to pay compensation, and with the safeguard which applies to the acquisition of easements under Section 7 of the 1945 Act, will agree that the power being taken is not excessive power. The whole object of putting in paragraph 8 of the Schedule is to make clear that the right to acquire easement includes this right. There is some reason to suppose that it in itself is an easement. If so, the right to acquire water would be exercisable by virtue of Section 7. But according to another opinion, it is not strictly an easement but a natural right. If so, it does not come in the category of easement under Section 7. This gives a limited and harmless power which must be exercisable in order that proper use may be made of land in the vicinity of a water course.

What relations will there be with local authorities before this power is exercised? We are having at present water schemes produced and prepared by local authorities in different parts of the country, many involving the extraction of water from various rivers. If we have the Minister exercising power under this Bill without consultation with the local authorities, and operating quite independently, it may be that after going through all the processes of preparing these schemes, the local authorities may find that the Minister has got there first and taken the water away.

I hope the hon. and learned Gentleman will, if he is not in a position to deal with this point tonight, look into it and put down something to provide that there shall be some consultation with the local authorities before the right of extracting water is exercised over the local authorities' heads. I am quite sure that that is the intention of the hon. and learned Gentleman, but it is not specifically provided for in this Measure. In fact, all he says is that Ministers can ignore local authorities in this connection. I would remind the Committee that that is all he has said in this matter.

This is neither a minor nor a consequential Amendment of the Act of 1945. We have suffered in the past a great deal of trouble by the extraction of water, for example, by an aerodrome. As this paragraph 8 is drafted it will give the Air Ministry—perhaps anybody else—the power to extract water which ought to be going to the inhabitants of a rural or urban area; it will go to an aerodrome. I would like to hear from the Solicitor-General why a Government Department should be put in a better position than any other occupier of land, be that land adjacent to, or removed from a water course.

It is quite wrong at the present time when there is a great shortage of water in rural areas that a Government Department should come forward with such a proposition as this. In addition to the case I have mentioned, there is the case of a factory run by the Government under the Requisitioned Land Act. Such a factory will be in a more favourable position than any other factory so far as the extraction of water is concerned. I do ask the hon. and learned Gentleman to withdraw paragraph 8 from this Schedule, and if there is a point to amend the Act of 1945, I suggest that the Government should bring it forward as a new Clause in the Bill.

I would like to stress the point which has been made by the hon. Member for Thirsk and Malton (Mr. Turton) that the rights of local authorities should be protected in this connection. We in Scotland are disturbed by the encroachments of the Minister of War, especially in Roxburghshire and Selkirk. I would like to know how the local authorities are to be protected against the Minister of War and various other Departments. I would like to draw attention to one sinister sentence in the Schedule, which might mean that "the person or persons affected" might be the local authorities in conflict with the War Office. We are not satisfied that the county councils or other local authorities who control these water supplies are going to have a fair deal.

10.45 p.m.

I am afraid the hon. Member does not now appear to be dealing with the Amendment on the Order paper. This Amendment deals only with paragraph 8 on page 17 and is limited to the question of water courses.

I have received no answer in regard to local authorities. It is a point of some importance, and I hope the suggestion of the hon. Member for Thirsk and Malton will be adopted.

I had not intended any discourtesy in not replying. I will certainly bear in mind what the hon. Members have said, but I really do not think there is any need for a change in the wording of the Bill. The hon. and learned Member for Daventry is apprehensive that anti-social use might be made of water, that local authorities might be prejudiced, that amenity societies might be at a disadvantage, and that one scheme might clash with another; but the answer, I think, is really to be found in Section 8 onwards of the 1945 Act. It is clear that the power to acquire easements is hedged around and restricted.

A proposal to acquire easements has to be published: if objections are raised, the matter has to be referred to the War Works Commission which then considers it. They afford an opportunity for hearing to anybody who thinks that his interest will be prejudiced by the acquisition of easements. They then make a report to the Minister and the Minister can only in certain circumstances override that report, so really there are most

Division No. 64.]

AYES.

[10.50 p.m.

Acland, Sir R.Cobb, F. A.Evans, S. N. (Wednesbury)
Adams, Richard (Balham)Collindridge, F.Ewart, R.
Alexander, Rt. Hon. A. V.Collins, V. J.Fairhurst, F.
Alpass, J. H.Colman, Miss G. M.Field, Capt. W. J.
Attewell, H. C.Comyns, Dr. L.Fletcher, E. G. M. (Islington, E.)
Awbery, S. S.Cooper, Wing-Comdr. G.Foot, M. M.
Bacon, Miss A.Corbet, Mrs. F. K. (Camb'well, N.W.)Forman, J. C.
Baird, J.Corlett, Dr. J.Fraser, T. (Hamilton)
Barstow, P. G.Crossman, R. H. S.Ganley, Mrs. C. S.
Barton, C.Daggar, G.Gibbins, J.
Bechervaise, A. E.Davies, Edward (Burslem)Gibson, C. W.
Belcher, J. W.Davies, Harold (Leek)Gilzean, A.
Berry, H.Davies, Haydn (St. Pancras, S.W.)Glanville, J. E. (Consett)
Bing, G. H. C.Davies, S. O. (Merthyr)Gooch, E. G.
Binns, J.Deer, G.Greenwood, A. W. J. (Heywood)
Boardman, H.de Freitas, GeoffreyGrierson, E.
Bowden, Flg.-Offr. H. W.Delargy, H. J.Griffiths, D. (Rother Valley)
Braddock, Mrs. E. M. (L'pl, Exch'ge)Diamond, J.Gunter, R. J.
Braddock, T. (Mitcham)Dobbie, W.Guy, W. H.
Bramall, E. A.Dodds, N. N.Haire, John E. (Wycombe)
Brook, D. (Halifax)Donovan, T.Hale, Leslie
Brown, T. J. (Ince)Driberg, T. E. N.Hall, Rt. Hon. Glenvil
Bruce, Maj. D. W. T.Dumpleton, C. W.Hardy, E. A.
Buchanan, Rt. Hon. G.Durbin, E. F. M.Harrison, J.
Burden, T. W.Dye, S.Hastings, Dr. Somerville
Burke, W. A.Ede, Rt. Hon. J. C.Haworth, J.
Butler, H. W. (Hackney, S.)Edwards, N. (Caerphilly)Henderson, Rt. Hn. A. (Kingswinford)
Callaghan, JamesEdwards, W. J. (Whitechapel)Henderson, Joseph (Ardwick)
Carmichael, JamesEvans, A. (Islington, W.)Herbison, Miss M.
Champion, A. J.Evans, John (Ogmore)Hewitson, Capt. M.

ample opportunities provided by the terms of the 1945 Act which are available in the case of water easements and provide for consultations with everybody concerned, including the local authorities.

Are the rights of local authorities going to be adequately safeguarded in the event of controversy or dispute between a county council in Scotland and the War Department? Who is going to decide on the relative merits in a given dispute?

The War Works Commission is the body who will decide the matter judicially. The report which is made can only be disregarded by the Minister subject to very stringent limitation. He must abide by the report except in exceptional circumstances. In other words, there is a judicial body which is independent and which will decide as between the conflicting interests and make a report.

The Solicitor-General has drawn attention to Section 8, but by Subsection (5) there is a summary process involved which gets none of the time of the judicial hearing in the normal case.

Question put, "That the words proposed to be left out, to the second 'to' in line stand part of the Schedule."

The Committee divided: Ayes, 231; Noes, 54.

Hobson, C. R.Morris, P. (Swansea, W.)Sorensen, R. W.
Holman, P.Moyle, A.Soskice, Maj. Sir F.
Holmes, H. E. (Hemsworth)Nally, W.Stamford, W.
House, G.Neal H. (Claycross)Steele, T.
Hoy, J.Nichol, Mrs. M. E. (Bradford, N.)Stewart, Michael (Fulham, E.)
Hudson, J. H. (Ealing, W.)Nicholls, H. R. (Stratford)Stross, Dr. B.
Hughes, Emrys (S. Ayr)O'Brien, T.Sylvester, G. O.
Hughes, Hector (Aberdeen, N.)Oldfield, W. H.Taylor, H. B. (Mansfield)
Hutchinson, H. L. (Rusholme)Oliver, G. H.Taylor, R. J. (Morpeth)
Hynd, H. (Hackney, C.)Orbach, M.Taylor, Dr. S. (Barnet)
Hynd, J. B. (Attercliffe)Paget, R. T.Thomas, D. E. (Aberdare)
Irving, W. J. (Tottenham, N.)Paling, Rt. Hon. Wilfred (Wentworth)Thorneycroft, Harry (Clayton)
Isaacs, Rt. Hon. G. A.Paling, Will T. (Dewsbury)Tiffany, S.
Jeger, G. (Winchester)Palmer, A. M. F.Timmons, J.
Jeger, Dr. S. W. (St. Pancras, S.E.)Parker, J.Titterington, M. F.
Jones, D. T. (Hartlepools)Parkin, B. T.Ungoed-Thomas, L.
Jones, Elwyn (Plaistow)Paton, Mrs. F. (Rushcliffe)Vernon, Maj W F
Jones, P. Asterley (Hitchin)Paton, J. (Norwich)Wallace, H. W. (Walthamstow, E.)
Keenan, W.Pearson, A.Warbey, W. N.
Kenyon, C.Poole, Cecil (Lichfield)Watkins, T E
Kinghorn, Sqn.-Ldr. E.Porter, E. (Warrington)Watson, W. M.
Kinley, J.Porter, G. (Leeds)Wells, W. T. (Walsall)
Lang, G.Price, M PhilipsWheatley, J. T. (Edinburgh, E.)
Lee, F. (Hulme)Pritt, D. N.White, C. F. (Derbyshire, W.)
Lee, Miss J. (Cannock)Pursey, Cmdr. H.White, H. (Derbyshire, N.E.)
Lewis, A. W. J. (Upton)Randall, H. E.Whiteley, Rt. Hon. W.
Lewis, T (Southampton)Ranger, J.Wigg, George
Lindgren, G. S.Reeves, J.Wilcock, Group-Capt. C. A. B.
Lipton, Lt.-Col. M.Reid, T. (Swindon)Wilkes, L.
Longden, F.Richards, R.Wilkins, W. A.
Lyne, A. W.Robens, A.Willey, F. T. (Sunderland)
McAllister, G.Robertson, J. J. (Berwick)Willey, O. G. (Cleveland)
McGhee, H. G.Royle, C.Williams, D. J. (Neath)
Mack, J. D.Sargood, R.Williams, J. L. (Kelvingrove)
Mackay, R. W. G. (Hull, N.W.)Scollan, T.Williams, W. R. (Heston)
McKinlay, A. S.Segal, Dr. S.Willis, E.
McLeavy, F.Sharp, GranvilleWills, Mrs. E. A.
MacMillan, M. K. (Western Isles)Shawcross, C. N. (Widnes)Wise, Major F. J.
Macpherson, T. (Romford)Shawcross, Rt. Hn. Sir H. (St. Helens)Woodburn, A.
Marshall, F. (Brightside)Silverman, J. (Erdington)Woods, G. S.
Mathers, Rt. Hon. G.Silverman, S. S. (Nelson)Yates, V. F.
Medland, H. M.Simmons, C. J.Younger, Hon. Kenneth
Mellish, R. J.Skeffington, A. M.Zilliacus, K.
Middleton, Mrs. L.Smith, C. (Colchester)
Mikardo, IanSmith, Ellis (Stoke)

TELLERS FOR THE AYES:

Mitchison, G. R.Smith, H. N. (Nottingham, S.)Mr. Popplewell and
Monslow, W.Smith, S. H. (Hull, S.W.)Mr. George Wallace.
Moody, A. S.Snow, J. W.
Morris, Lt.-Col, H. (Sheffield, C.)Solley, L. J.

NOES.

Agnew, Cmdr. P. G.Hope, Lord J.Nield, B. (Chester)
Assheton, Rt. Hon. R.Hutchison, Lt.-Cm. Clark (E'b'rgh W.)Roberts, Emrys (Merioneth)
Baldwin, A. E.Keeling, E. H.Roberts, Peter (Ecclesall)
Bennett, Sir P.Legge-Bourke, Maj. E. A. H.Roberts, W. (Cumberland, N.)
Boles, Lt.-Col. D. C. (Wells)Lennox-Boyd, A. T.Ropner, Col. L
Bowen, R.Lipson, D. L.Stoddart-Scott, Col. M.
Boyd-Carpenter, J. A.Lloyd. Selwyn (Wirral)Taylor, C. S. (Eastbourne)
Buchan-Hepburn, P. G. T.Lucas-Tooth, Sir H.Thorp, Lt.-Col R. A. F.
Byers, FrankMcCallum, Maj. D.Turton, R. H.
Clarke, Col. R. S.Macdonald, Sir P. (I. of Wight)Wadsworth, G.
Cooper-Key, E. M.Mackeson, Brig. H. R.Walker-Smith, D.
Corbett, Lieut.-Col. U. (Ludlow)Maclay, Hon. J. S.Wheatley, Col. M. J. (Dorset, E.)
Crosthwaite-Eyre, Col. O. E.Maitland, Comdr. J. W.White, Sir D. (Fareham)
Drayson, G BManningham-Buller, R. E.Williams, C. (Torquay)
Drewe, CMarshall, D. (Bodmin)Willoughby de Eresby, Lord
Dugdale, Maj. Sir T (Richmond)Medlicott, F.York, C.
Gage, CMellor, Sir J
George, Maj. Rt. Hn. G. Lloyd (P'ke)Neven-Spence, Sir B.

TELLERS FOR THE NOES:

Haughton, S. G.Nicholson, G. Major Conant and Major Ramsay.

I beg to move, in page 17, line it, after "rights," to insert:

"as against all persons affected or to be affected"
This is a drafting Amendment designed to make it quite clear that the rights acquired under paragraph 8 of the Schedule are kept against all future owners of the land in question. As the Committee has just heard from the speech of the Solicitor-General, the right to take water by the owner may be held to be a natural right and not an easement. If so, it follows that it must be a personal right which cannot be binding on any subse- quent holders of title. All we are doing by this Amendment is to make it clear in this instance, at any rate, that the powers acquired by the Government subsist against all subsequent owners whoever they may be and whenever they may succeed in title.

11.0 p.m.

I am not so sure that this form of words gives us the necessary assurance that we wish, that the rights of local authorities are to be protected under this Bill. I listened very patiently to the explanations of the Solicitor-General. Perhaps he can elaborate the point as to how it effects local authorities—county councils for example—if they came in conflict with Government Departments. There are three cases which are causing a great deal of interest at the present time—the County Council of Inverness-shire, the County Council of Roxburghshire and the County Council of Ayrshire. I want to know what happens in the event of a dispute between these authorities and the Government Department involved. Who will decide which authority is to have the ultimate say? For example, if the negotiations break down between the Secretary of State for War and one of these county councils, who will be the final authority? Will it be the Secretary of State for War?

I hardly think that the point raised by my hon. Friend really arises on this Amendment, but perhaps I may set his mind at ease by saying this: all we are doing under paragraph 8 of the Schedule is to place the Government, as it were, in the shoes of the riparian owner. Compensation is payable for the right to take water, and all that we are doing is to say that the Government may acquire such rights as the riparian owner has. If the Government have not got the rights, then some other owner has them. For example a local authority may have them. The local authority will then treat with the Government. Whoever happens to be the riparian owner—it may be that a private individual is concerned—will treat regarding the riparian rights in which the Government may show an interest, and disputes will go to the War Works Commission.

Amendment agreed to.

Schedule, as amended, agreed to.

Bill reported, with Amendments; as amended, to be considered upon Monday next and to be printed. [Bill 42.]