Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

This is the first of several clauses dealing withthe registration of dispositions affecting rights of common. Theseprovisions would require the registration of any disposition for it tobe effective in law. The clause sets out to ensure that the grant of anew right of common will not be effective until it has been registeredon application to the commons registration authority. It is essentialto regulate the grant of new rights in that way to ensure that theregisters are comprehensive of all rights of common exercisable overthe land and that no claim can be made to latent prescriptive rightsthat subsist over the land but have yet to be registered.

The clause makes it impossibleto create a right by prescription or to create a new right that is notattached to land. Abolition of the acquisition of rights of common byprescription ensures that there is certainty as to whether land issubject to rights ofcommon.

Roger Williams (Shadow Minister (Rural Affairs), Environment, Food & Rural Affairs; Brecon & Radnorshire, Liberal Democrat)

Although we welcome the clause, subsection (6)gives a duty to a local authority to make a judgment and that judgmentwill be about whether it is possible to exercise or sustain theexercise of that rightor

“if the land isalready registered as common land, any other rights of commonregistered as exercisable over theland.”

We are worriedabout how the commons registration authority will reach a conclusion onthe matter. Whether a common is appropriately grazed, over-grazed orunder-grazed is often a contentious issue, and there will be as manydifferent opinions as there are people. I know that the Bill sets outlater that an appropriate national authority may appoint people tocarry out the exercise on behalf of the commons registration authority.However, we are concerned about the loss of the commons commissionersas set out in the debate on SecondReading.

In the otherplace, amendments were tabled on inspectors and other ways ofaddressing such issues, but we want to flag matters up at this stagebecause it is an onerous burden for local authority officers, electedmembers, ad hoc tribunals or whatever to have to make such judgments.We want to put in place a much more appropriate system for making thesedecisions.

Elfyn Llwyd (Parliamentary Leader; Meirionnydd Nant Conwy, Plaid Cymru)

I have just one question for the Minister. We aretalking about the creation of rights. In our debate on Second Reading,we referred to estovers, pannage and piscary. One thing that worries meis that the notes on clauses make no reference to turbary. I did notsay that to raise a laugh in Committee. It is an important right forpeople in my area. They still dig peat and use it for domesticpurposes. Will the Minister confirm that that was just an oversight andsay that there is no intention to extinguish the registration of suchrights, which are still important in many uplandareas?

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I will reflect on turbary rights, while I respondto the point made by the hon. Member for Brecon and Radnorshire. Thelocal authority, acting as the commons registration authority, willperform its duties in a quasi-judicial form, much as it does in  respect of planning. From my experience of chairing a planning committeeon a local authority, I recall that issues were often controversialwith views held strongly on both sides. I have no reason to doubt thatthat was anything but thenorm.

Localauthorities are in a good position to perform such duties as long asthey are performed subject to advice. In the same way, when theyperform their duties as a planning authority, they carry out thosefunctions with advice. We have made it possible for those authoritiesto take advice on technical issues under part 1, and we amended theBill in another place to introduce a power to require it to consultunder clause 24(2)(h).

I hope that, on that basis, thehon. Gentleman is reassured that we consider local authoritiesperfectly able to perform that function. If the issue is sufficientlytechnical that they do not feel that they have the expertise, despitethe investment in expertise that the Government are making, they canrefer it to the panel. We will discuss that later when we discuss thewisdom or otherwise of replacing commons commissioners under thearrangements set out.

For those who need anexplanation, turbary is defined in annex A of the explanatory notes. Ifthat is not adequate, I can write to the hon. Member for MeirionnyddNant Conwy (Mr. Llwyd) but he is indicating that he is happy with it. Ihope that the Committee will support clause6.