David Drew (Stroud, Labour)

I beg to move amendment No. 78, in clause 41, page23, line 40, at endinsert—

‘(1A) It is the dutyof the commons registration authority to prevent, as far as possible,the unlawful encroachment on any common land for which it is theregistration authority'.

I could go on at considerablelength about the amendment but, although it is important, I shall not.From what I have read, those in another place were beginning to run outof steam towards the end of the Bill. They considered how localauthorities that presumably will be the registration authorities willhave the means by which they can pursue enforcement, as well as whowould be entitled to take such action. As always, there was worry abouta vexatious litigant and who would bear the cost of suchproceedings.

The mainpurpose of the amendment is to put a duty on local authorities toremove illegal works. It is welcome that the Government areintroducing, under section 194 of the Law of Property Act 1925, thesame procedure in respect of all commons to ensure consistency, but itseems anomalous that the public will have the power to take actionagainst unlawful works, the construction or semi-construction of abuilding, although there will be no duty on local authorities to takeenforcementaction.

The proposalis a probing amendment to ascertain the meat of the Bill and toconsider whether actions can taken by various parties that may be theowners of the commons or, indeed, the association or committee. Whataction will the Government take to give the registration authoritiesthe responsibility to do something about such encroachments? The issueis important. Those of us who have commons in ourconstituencies—it seems to be virtually everyone in theCommittee—will expect to hear what the Government are doing andwhether they would consider puttinga duty on the registrationauthorities to take enforcementaction.

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

The amendment, which would place a duty on local authorities is reasonable, and would improve the Bill. The question is whether they have the necessary money and expertise to take enforcement action. I understand the principle, and it is a good idea.

I should like to ask the Minister one or two questions, given that we did not succeed in the attempt to bring proportionality into clause 38 by inserting the word “materially” to avoid de minimis cases. The enforcement duty for infringements will lie with county councils, local authorities and parish councils. That will open it up to every person on the street. It is to be hoped that people will not use the law for the wrong reasons or pursue minor infringements such as the use of temporary pens for collecting sheep, butts for shooting and so on. That is a danger.

We have had this debate twice before, and I do not want to delay matters. The Minister says that the county court will not make an order, but getting that far is a waste of the court’s time and everybody’s money. It is undesirable that the Bill should leave an avenue open for people to take what might well be vexatious action for whatever reason—they might have a personal grudge; I do not know. I am concerned about the provision, because it could be misused.

My second question for the Minister is whether, having given individuals the right to litigate by taking such matters to court, the clause would enable them to take enforcement action against perceived existing breaches as well as future ones. I can anticipate his  response to my first question, because we have been over that ground, but I should like him to respond to my second question about whether the clause would cover existing breaches.

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

I will think about that last point while I deal specifically with amendment No. 78, which would place a duty on commons registration authorities to resist encroachment on common land. I am grateful to my hon. Friend the Member for Stroud for tabling it.

The Bill goes some way toward improving controls on works on common land. It will clarify the application of the controls, modernise the consent regime and, as we heard, enable any person to enforce against unlawful works. It will no longer be possible to ignore the controls in the hope that they will not be enforced.

As I have said, I want Natural England and the Countryside Council for Wales to become the Government’s champions for the management and well-being of common land. We see a role for them in encouraging communities to take a more proactive attitude to protecting their common land.

Registration authorities, in common with other councils, will have power to enforce against encroachments, but my hon. Friend will appreciate our position on the matter. A local authority’s priorities are for the authority, and not central Government, to decide. It is appropriate to give the power but not the duty.

The Bill is not just a legislative instrument. It will raise the profile of common land. We will be working closely with local government in the next few years to implement the legislation, assuming that it becomes an Act. That will involve issuing circulars explaining authorities’ powers as well as their duties under the Act and encouraging their greater involvement in the management of common land.

I counsel my hon. Friend against seeing new duties necessarily as a solution to a problem. I am sure that he shares my desire to see greater access to the countryside, but duties alone are not always fulfilled, as we have seen with the management of the public rights of way network by certain local highway authorities in certain parts of the country. It is only as a result of a combination of new duties—such as rights of way improvement plans, together with guidance and a great deal of hard work by, in the case of England, the Natural England partners and the Department for Environment, Food and Rural Affairs in raising the profile of rights of way in the past few years—that we are now seeing results in making the network better available for use. I want to see a similar effort made to raise the status of common land.

David Drew (Stroud, Labour)

I understand what my hon. Friend is saying. Obviously, I shall not be pressing the amendment to a Division, but I am interested in the difference between someone who blocks a common and someone who blocks a road. A local authority has a duty to keep the highway open as, incidentally, do members of the public, who operate under a power if they see someone blocking the highway for whatever reason. The clause is really about consistency and making sure that local authorities do what they should  do. As we know from previous debates, there are cases where, because of the parking of a vehicle or some other reason, a local authority can choose to do nothing. That is just not acceptable.

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

There are all sorts of rights of way and local authorities make their judgments about the blockages on them. If it is a busy highway, they are more likely to take action than if it were a quiet footpath. They exercise their duties with discretion, and that is my point. Therefore, I can not accept the amendment, but I hope that my hon. Friend will accept that the Bill takes us into a new era for common land. I am confident that, in future, the profile of common land will be much higher and the controls far less likely to be breached with impunity. We all have a role in encouraging local authorities to use their powers in the public interest and I know that all members of the Committee are keen to protect and enhance our commons.

With respect to the comments made by the hon. Member for Meirionnydd Nant Conwy about retrospective enforcement against existing unlawful works, there was significant debate in the other place where views on both sides were expressed. We amended the Bill on Third Reading in the other place to prevent any person from taking enforcement action against unlawful works before its introduction. Local authorities and the legal interest in the land remain able to enforce against such works within the normal time limits. On reflection, we do not feel that it is fair to extend retrospectively the scope for enforcement in that situation. I see the hon. Gentleman nodding and therefore hope that my explanation is sufficient. I ask him not to press the amendment.

David Drew (Stroud, Labour)

I am concerned that, under clause 42, power will be granted to local registration authorities to amend existing schemes of work. Although we have to be careful that we are not allowing a diminution of the responsibility of local authorities, I beg to ask leave to withdraw the amendment.

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

I beg to move amendment No. 16, in clause 41, page 23, line 41, leave out from ‘order' to end of line 42.

Michael Weir (Spokesperson (Work & Pensions; Trade & Industry); Angus, Scottish National Party)

With this it will be convenient to discuss the following: Government amendments Nos. 17 and 18.

Amendment No. 79, in clause 41, page 24, line 4, at end add—

‘(2A) If the person carrying out the works fails to comply with an order under this section, an eligible person may carry out any outstanding requirements of the order and recover from the person in default the costs reasonably incurred by the eligible person in doing so.

(2B) If an eligible person other than a local authority considers that outstanding requirements under subsection (2A) are beyond the capability or resources of that person, they may require an appropriate local authority to carry out those requirements.'.

Amendment No. 80, in clause 41, page 24, line 4, at end add—

(a) If a person fails without reasonable excuse to comply with an order under subsection (2) above, he is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding one-twentieth of that level for each day on which the offence is so continued.

(b) Where, after a person is convicted of an offence under paragraph (a) above, the local authority for the common concerned exercise any power to remove the cause of the obstruction, they may recover from that person the amount of any expenses reasonably incurred by them in, or in connection with, doing so.'.

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

The Government amendments are technical. I hope that the Committee will accept them.