Clause 38 — Prohibition on works without consent

Orders of the Day – in the House of Commons at 3:30 pm on 29th June 2006.

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Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 3:30 pm, 29th June 2006

I beg to move amendment No. 114, in page 21, line 36, at end insert—

'(2A) Subsection (2)(a) does not include works for the purposes of—

(a) the safety of users of the Common; or

(b) animal welfare; or

(c) conservation;

Provided that they are either—

(i) necessary for immediate reasons whilst consent is obtained under subsection (1); or

(ii) constructed for a limited period as may be specified in Regulations made by the appropriate national authority.'.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Government amendments Nos. 76 to 80

Amendments No. 121, in page 43, line 35 [Schedule 4], leave out

'on or after 28 June 2005 but'.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I welcome the Government amendments that deal with the issue of the National Trust. Again, we referred to that matter in Committee, where I tabled those amendments. In Committee, the Minister said that the amendments were not necessary, so I am glad that this Minister has acceded to them. Ministers often say, "It is not necessary to include such and such provision, because it is implicit somewhere else", which usually leads Opposition Members to argue, "If it is not going to do any harm, why don't you put it in the Bill for clarity?" Ministers usually resist such moves, but this Minister has not done so on this occasion, which is welcome.

Amendment No. 114 concerns works on commons, which we debated at some length in Committee and about which the Minister and I have had further discussions. I suspect that the Minister will argue that clause 38 is similar to existing legislation, so there is not a problem. However, I suggest that we should take this opportunity to make sure that there is not a problem in the future. There are obviously far more users of commons than there used to be, including not only graziers, but pedestrians and dog walkers.

The amendment is straightforward. It is designed to eliminate the problem of people, organisations and commons councils having to apply to the national authority for permission to do temporary or urgent works. The three purposes for which it would be possible to carry out such works are human safety, animal welfare and conservation. However, those purposes would not be sufficient in themselves, because the second part of the amendment adds two further provisos—first, that the works must be urgent, and, secondly, that they must be temporary.

We debated temporary works in Committee. Paddy Tipping will recall that we discussed electric fencing to keep livestock off roads during the grazing season, and there was some debate about how long is "temporary". I have not tried to specify the period of time and suggest that the matter could be dealt with by regulation, which would allow the Minister to consult before drawing a conclusion. The circumstances in which I envisage the issue of urgency arising involve, for example, floodwater rendering part of a common dangerous for children. There are town commons in my constituency where people roam, and much of my constituency is fenland, which, because it is close to sea level, is prone to flooding. It might be sensible to erect emergency fencing, even if it is that dreadful orange plastic stuff that is used around roadworks, to keep children out of deep water.

Other commons may have old pit shafts where ground could suddenly collapse as a result of torrential rain, again creating a need for emergency safety provisions for children and livestock. It is by no means unknown for sheep to fall down into such places. In terms of conservation, there may be a wild plant that is flowering and should be protected until it has set its seed, or a wild bird such as a hen harrier or other bird of prey that is nesting on the ground and needs to be protected for a short period.

I find it incredible that in all the examples that I have cited it should be necessary to apply to the national authority—in England, the Secretary of State—for permission to act. I would be very surprised if someone was able to get that permission in a matter of hours, yet a situation involving floodwater or the collapse of old mine workings is certainly an emergency, and there should be an ability to erect something very quickly.

I cannot pretend that I am standing here in huge anticipation that the Minister will welcome and accept my amendment with open arms, but it concerns a genuine issue. I have bent over backwards in devising it to make it as minimal as possible in addressing the concerns that his predecessor expressed in Committee. It is limited to specific examples but would reduce the need for councils or landowners to seek consent from the national authority without good cause. It defies belief that a council should have to go through this procedure in an emergency, thereby creating a period of risk for perhaps several weeks while the relevant authorities carry out all the necessary deliberations and consultations before a decision is reached. I am not trying to circumvent the need to apply for consent, but merely to allow for a temporary arrangement in an emergency while it is being sought.

This requires a sense of proportion and common sense. The Government rightly and understandably want to protect the rights of commons users other than graziers, such as walkers and people using the open access provisions, but I am trying to protect them as well. They could be at risk from some of the situations that I described, and it should be possible to protect them as soon as that is necessary. The same applies to the conservation of flora or fauna.

There is no need for me to speak at any greater length. I think that the case is clear, and I hope that I have made it so. I tried to devise an amendment that the Minister would find acceptable and that is relatively minimal while addressing the fundamental problem. It has received support from outside organisations such as the National Farmers Union. I hope that the Minister will understand its importance and be prepared to accept it.

Photo of Paddy Tipping Paddy Tipping PPS (Rt Hon Jack Straw, Lord Privy Seal), Leader of the House of Commons

I am pleased to follow Mr. Paice, who stressed the importance of managing the different interests, needs and conflicts in the countryside. I want to press that line of thinking with the Minister.

Government amendments Nos. 77 and 78 provide a discretionary power to ensure that clause 38 does not revive controls that ceased under section 194 of the Law of Property Act 1925. The Minister wrote helpfully to all members of the Committee on 23 June 2006. He said that he felt that the amendments were necessary because of one example—Warcop military training estate in Cumbria, in the constituency of David Maclean. I know Warcop common, which is an attractive, exciting piece of countryside, and he will know that the MOD manages it well, but there is potential conflict between the MOD's purposes and the desires of walkers and ramblers in the north Pennines. I ask the Minister to put on record what he put in his letter—that if this discretionary power is used, there will be full consultation by MOD estates. The conflict of interest can be resolved and it is important to do that.

Another conflict of interest is dealt with by my amendment No. 121. Members will be familiar with the issue, which has run throughout the course of the Bill. When the Bill was first published, 28 June 2005 was not mentioned—the date was inserted in the other place in Grand Committee. The purpose of this part of the Bill is to give people the right to argue that unlawful works should be removed. That is important in the context of the Countryside and Rights of Way Act 2000, which has been mentioned today.

One of the Government's achievements has been the gift to working people of the right to roam freely over open country. All over the country, however, there is unlawful fencing. As I understand the present position, people can make an application for unlawful works and fencing erected after 28 June 2005 to be removed. I know from my direct experience, however, that there is fencing all over the country that precedes that date. For the life of me, although I know why the date of 28 June 2005 has been inserted, I do not understand the principle behind it.

It is important that the Government are clear about their intent. It has taken landmark legislation to allow people to walk freely in the countryside. That access is being restricted by unlawful works. It cannot be right that people such as me can apply for those unlawful works, which prevent access to parts of the country, to come down if they were erected after 28 June 2005, but not if they were erected prior to that. The Bill has been improved, and its balance is generally right. On that aspect, however, the Government have got it wrong—badly wrong.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee) 3:45 pm, 29th June 2006

I support my hon. Friend's amendment No. 114.

In relation to Warcop, before I get too far out of order, Mr. Deputy Speaker, may I pay tribute to the wonderful job the Ministry of Defence does in managing that range for wildlife purposes? When I hear people whinge about the MOD owning land and so on, I know that the best places for wildlife protection in my constituency are on the live firing ranges at Warcop, with tanks blasting off 120 mm shells a few yards away from where wildlife is happily existing. I am happy to put that on record.

There is no great issue of principle between us on what we are seeking to achieve. I pay great tribute to Paddy Tipping, and when we discussed the matter in Committee, I could not help but conclude that when he thinks of commons it is of the Wimbledon commons of this world and smaller village greens, where it would be absolutely atrocious for people to put up miles of barbed wire fencing. I, however, tend to think of 10,000 acres of moorland in Cumbria, where we sometimes need a wee bit of fencing.

Photo of Paddy Tipping Paddy Tipping PPS (Rt Hon Jack Straw, Lord Privy Seal), Leader of the House of Commons

I think of those wild open spaces in the north Pennines. That is why I praise the Government for what they have done to allow people like me, from ordinary backgrounds, to experience it after a century of campaigning. I want that to continue; I do not want unlawful fencing to stand in its way.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I entirely agree. We do not want unlawful fencing. We do not want those wild open spaces to be cordoned off so that people cannot use them, we do not want miles of barbed wire so that people get tangled up in it—but we do not want people to fall down holes.

The simple examples that I shall give the Minister are not original; I gave them in Committee. But if the Bill were already law, by this time of the year the Minister would probably have 1,000 applications on his desk from Cumbria alone. Why? If I read the law correctly, at this time of year the bulk of those applications would be for permission to put up a few gates for a few days—a few weeks at most—to separate the sheep from the lambs. Sheep may now be out on the fells with the lambs. They may be nearer to the in-bye land. Farmers will not drive them all into the sheds to separate them; what they will do, at times, is take out a few gates, wooden or steel, put up a temporary pen, and then do some separation work. They will do it when they are doing the lug-tagging—putting the ear tags on. They will find a corner where two stone walls come together, and put up a temporary pen there. That happens every day of every week of the year in Cumbria, and no doubt in other sheep areas.

Those pens do not stay up permanently. The common is not fenced off. The pen provides a little sheep fank in which a farmer can work with his sheep for a day, or a couple of days. Then he will take the pen down and move on. That is happening all over Cumbria.

We have thousands of miles of stone walls in Cumbria, all built in the 19th century. Some of them look splendid, but most are teetering and a great many have fallen down. Every day of the year a bit of stone wall falls down on some Cumbrian common. If the commoners—the farmers—do not have time to fix the wall immediately, they will stick 10 ft of sheep netting or electric fencing around it. Over a period of two or three weeks they will rebuild the wall, a bit at a time, each day when they are checking the sheep. Those farmers are law-abiding people, but there is no way they are going to write to a national authority saying "A bit of my wall has fallen down; may I please have permission to stick up 6 ft of electric fencing?" That is just not going to happen, and those people will be breaking the law.

A wet hole may suddenly appear on a common. Again, we are not talking about a village green; we are talking about tens of thousands of acres of moorland and rough fell—some of the wildest, roughest land in the country. There are little bogs and hollows. Sheep fall in, so a farmer will try to fence off a circle around the hole, perhaps 10 or 20 ft in diameter. Given the right-to-roam provisions—which we all welcome—what is the legal obligation? If a farmer goes out one morning and finds a dead sheep in a little hole in a boggy bit of land, does he do nothing to fence it off? Some of the stone walls are very high, particularly when the banking beneath them has been undermined. If a farmer suddenly finds that a stone wall is about to fall down, does he do nothing about it? Or does he go to the farm office, eat his morning snack and start applying to the Minister for permission to fence off the bit of wall for a period? That ain't going to happen.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Education and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

The right hon. Gentleman is presenting a powerful argument. If a stone wall is known to be dangerous and a passer-by is injured, the farmer's insurance policy will be worthless if he has not taken steps to do something about it.

Photo of David Maclean David Maclean Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

The hon. Gentleman is absolutely right. In the management of thousands of acres of common, hazards are posed daily to the farmer, to his animals and to walkers every day. Anyone who walks on the Cumbrian commons will find little pockets in which fencing has been put up around hazardous areas. That is the way in which the land is managed, and, with the best will in the world, those who manage it are not going to apply for notification from the Minister.

We do not want whole swathes of common to be fenced off. We do not want to hear the excuse "The whole common is boggy: we had better fence off 1,000 acres in case someone gets stuck in it." Of course that will not wash. But we do need a de minimis requirement. We cannot invent the details—as Opposition Members, we do not have access to all the lawyers—but I think the Minister should draw up regulations that would permit fencing for human safety purposes, animal welfare purposes and conservation purposes.

If there is a fire on the heather, it will need reseeding, and a farmer will fence off a few hundred yards for the spring, until the grass grows in the summer. That keeps the sheep off the area and gives it a chance to recover. Those are all day-to-day management practices, and they will continue whatever we say here. I just do not want those simple everyday tasks to be a crime or illegal, because farmers will not apply for licences to do what has been done for hundreds of years.

We do not want to drive a coach and horses through the Bill, and the amendment would not do that. It tries to set a minimum standard, and would allow small works for a short time for certain defined purposes. I am sorry that the Government have not tabled an amendment on this point, and I hope that there is scope in the Bill somewhere for de minimis regulations to set a threshold so that farmers can carry out such tasks without having to apply for permission or a licence to do so. Otherwise, the Minister will be a very busy man.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

I echo the remarks made by my neighbour and right hon. Friend David Maclean. Our constituencies are very similar in landscape and share a military training area. I can also vouch for how well Defence Estates manages the Otterburn training ranges. They are a first class example of good conservation.

The Minister may have an escape route, which he will need, because clause 38 is very prescriptive and could cause problems. Clause 40, however, will allow the introduction of regulations, and I hope that he will introduce regulations that will advise on this point. As my right hon. Friend has just said, the everyday activities of hill farmers would put them in breach of some of the restrictions in clause 38. As Paddy Tipping knows, the north Pennines are riddled with underground shafts, left by the lead mines. Indeed, one can still travel four or five miles underground in old tunnels, if one knows the way, that were carved in the rock by the lead miners. Sometimes the old shafts open up and are clearly a danger both to livestock and to people who have the right to roam in the area. It is reasonable for a farmer, therefore, to put up some fencing around it. Similarly, there is often bad weather at lambing time, so people put up temporary lambing sheds, either polytunnels, which are not very attractive, or old containers, which are even less attractive—that is farming in the hillsides. It is nonsense to suggest farmers would be in breach of this legislation if they were to do that.

The question also arises in connection with the maintenance of paths and roads. The north Pennines have a wide network of tracks, some of which get very boggy. On the more heavily used tracks, such as the Pennine way, people divert around the boggy patch and spread the path wider and wider. A farmer may dump some spare stone at that point to create some hard standing and stop the widening of the path, which damages the surrounding landscape, and protect the delicate turf.

All the examples that the House has heard today are important to day-to-day management of the land. At the moment, local farmers have to get consent if they want to put up some fencing, and the procedure is extremely cumbersome. In one case, an application to put up permanent fencing to stop animals straying on to an increasingly busy road went through the whole planning procedure and was eventually determined by a planning inspector in Bristol. That sort of thing takes months. I hope that the Minister will be able to frame regulations under clause 40 to introduce a de minimis criterion so that farmers who do sensible things in the normal course of their activities are not impeded or placed on the wrong side of the law.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Education and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

This is an important debate. We had a similar debate in Committee, and if nothing is done to amend the clause, the Bill could come into disrepute. As the clause stands, it will impede the natural husbandry of common land and, more importantly, it will pose several problematic legal conundrums. I referred to one in an intervention in the remarks by David Maclean. Clearly, no farmer could with any confidence rely on an insurance policy if there was an imminent danger that he knew of and did nothing about. The example given was to do with a stone wall that might be on the verge of collapse, but there are many others, such as to do with disused mine shafts or holes that appear in bogs, all of which are daily occurrences on the uplands.

Mr. Atkinson has ingeniously given the Minister what appears to be a lifeline. The point raised is important. In debate in Committee with the Minister's predecessor—who, I might be so bold as to say, was also a reasonable man—he would not accede on this, which I could not understand because just using the words de minimis without some force behind them does not take us very far. What was said was that the offender could be investigated and taken to court and then the case would be thrown out. That is all well and good, but what about all the time, money and effort that are put into bringing that person to court before it was thrown out because it was de minimis? That is a scandalous way of looking at things. We are making law here; we are making law that will probably last for the next 50, 60 or more years.

I urge the Minister to consider the good sense of the arguments in this case. He has to do something—through regulation, or however else he might do it. Otherwise, there is a potential problem in this part of the Bill, which, as I have said, would bring it into disrepute. That would be a great shame, because I, along with other Members in all parts of the House, commend much of the Bill, but this is a flaw that we will all come to regret, as with the dangerous dogs legislation.

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs) 4:00 pm, 29th June 2006

This group of amendments has certainly provoked much very interesting debate and raised important questions that we must grapple with.

Amendment No. 114, tabled by Mr. Paice, would exempt works on common land from the part 3 consent requirement if they are for the purposes of user safety, animal welfare or conservation, and are either urgent and necessary while a consent application is under consideration or will be on the land for not more than a limited period to be prescribed by regulations. Although I fully understand the aim behind the amendment, it would pre-empt the thorough consideration we wish to give to whether any particular types of works on common land, over and above those already described in clause 38(6), should be exempted from the normal requirement for consent under the Bill.

Clause 43 allows us—subject to the negative resolution procedure—to make such exemptions by order for a range of specific purposes; essentially, they are use of the land for access, recreation or sporting purposes, exercise of rights of common, nature conservation or heritage preservation. These grounds would between them be likely to embrace most of the practical scenarios that amendment No. 114 would address. In addition, we will have power under clause 40 to prescribe fast-track procedures for certain types of works or particular circumstances, if we conclude that that makes sense. During animal health crises, there are also emergency powers that may in any event override the need for consent under the Bill, and there may be other statutory powers to act in emergencies that would exempt necessary works from the consent requirement.

We intend to consult fully—I take on board the point of Mr. Atkinson—about our approach to the use of the exemption power. It is important to be able to draw on a full range of views and experience before we make decisions on this important issue. We have already indicated that any exemptions we make by order under clause 43(1) are likely to relate to works of a minor or temporary character. Beyond that, we do not want to prejudge the issue by including further provision in the Bill about what is to be exempt.

May I just correct an impression that might have been given by David Maclean? There is no question that crimes would be committed. The breach of clause 38 is not an offence; it is a matter for civil enforcement through the civil courts. In the 80-odd years since the enactment of section 194 of the Law of Property Act 1925, there have been no problems with sheep fences—an issue to which one Member referred earlier. Having made those points, I hope that the hon. Member for South-East Cambridgeshire will withdraw his amendment.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

The Minister thinks that the gist of my amendment is covered in the powers contained in the fast-tracking procedure and in clause 43, which deals with the power to exempt, but can he clarify one point? According to my reading of clause 43(1), the Minister will be able to exempt only the carrying out by a specified person of specified works on specified land".

Although subsection (b) widens that to include "any land", the fact remains that the clause refers to the carrying out of such works

"by a specified person, or a person of a specified description, of works of a specified description".

Does the Minister really believe that that creates the flexibility to deal with the issues that my hon. Friends and I have been discussing this afternoon? The examples of what are to be exempted are highly specific, rather than general. It is obviously impossible to say who should erect an emergency fence to protect children from falling into a mineshaft, for example, or to specify particular works. If one tried to list the circumstances in which an emergency might arise, one would be bound to miss some because, by their very nature, such circumstances are unforeseeable. My concern is whether the Minister has sufficient flexibility in clause 43 to do what he suggests he could do.

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs)

The hon. Gentleman puts a question that is absolutely to the point, and the answer is yes, we do believe that clause 43 will give us the flexibility that we require. But in framing subsequent regulations, we will obviously take very careful note of the view expressed by the House this afternoon, and of the potential pitfalls to which we have been alerted.

Government amendment No. 76 echoes a similar provision in clause 43(5). It enables an order to be made by the national authority, exempting certain land from the controls on works in clause 38. An order could be made under this amendment only in relation to land to which the controls on works under section 194 of the Law of Property Act 1925—the predecessor provision to clause 38—have already ceased to apply. So this amendment and the existing clause 43(5) merely give us the option to preserve the exemptions that are already in place, and we see that as entirely proper.

Generally, section 194 of the 1925 Act applies to land that was subject to rights of common in 1926. Where all rights of common have since been acquired under any statutory power, such as a power of compulsory purchase, section 194 will cease to apply to that land. It is in those circumstances that we would have the discretion to make an order under this amendment.

It will not surprise Members to learn that we have in mind a particular case: Warcop military training area, which is a firing range in Cumbria. The rights of common there were acquired in 2003 following a public inquiry, and the controls on works under section 194 therefore ceased to apply at the same time. There is uncertainty about Warcop's status, and I share the concern of the Under-Secretary of State for Defence, my hon. Friend Mr. Watson, that clause 38 could re-impose those controls. Government amendment No. 76 will enable us to address the issue at Warcop. My hon. Friend and I are committed to consulting at a later date—I give that commitment, as my hon. Friend Paddy Tipping asked me to do—on how best to address the problem in the light of this amendment, so that there is no interference with the delivery of our armed forces' training needs. It might help if I add that my Department is not aware of any other site where the circumstances would enable an order to be made using the powers conferred by this amendment.

I turn now to Government amendments Nos. 78 to 80, which deal with the National Trust. The House will recall from earlier debates that the trust was concerned about the impact of the Bill on the National Trust Acts. I have since met Fiona Reynolds, the trust's chief executive, and am pleased to say that we have been able to reassure the trust that the arrangements for improved management of commons set out in part 2 of the Bill do not represent any practical threat to its excellent management of its very extensive common land holdings.

However, Fiona Reynolds has also pointed out that the power in clause 44(2) to amend local or personal legislation by order

"for the purpose of making provision about works" may be too broad. The trust is concerned that it would allow such an order to repeal relevant powers taken by it under the National Trust Acts. Of course, that is not our intention, and the amendments that we consider necessary to those Acts are already set out in paragraphs 3 and 4 of schedule 4.

Government amendment No. 78, which builds on an amendment proposed to us by the National Trust, addresses that matter. It makes it clear that the purpose of the power is simply to enable any existing consent criteria or procedures for works carried out under local or personal legislation to be made consistent with the criteria and procedures set out in part 3 of the Bill. The amendment does this for both the current subsections (2) and (4) of clause 44, and obviates the need for subsection (5). Government amendments Nos. 79 and 80 are consequential.

As I understand it, the National Trust supports the generality of the Bill's provisions, and the tabling of Government amendment No. 78 leaves it content that the Bill will not prejudice its interests.

Amendment No. 121, tabled by my hon. Friend the Member for Sherwood, stems from an amendment that we made to the Bill on Third Reading in another place. That Government amendment concerned section 194 of the Law of Property Act 1925 which, as I have already said, is the current statutory provision about consent for works on commons. The Bill will repeal section 194 in due course, but paragraph 6 of schedule 4 makes transitional provision about enforcement under the section until it is repealed.

Originally, paragraph 6 of schedule 4 provided for any person or organisation to seek enforcement action, in the county court, against works undertaken without authority under section 194 of the 1925 Act. Our amendment in the other place said, in effect, that that did not apply to works undertaken before the Bill was introduced into the House of Lords last June—hence the date. In such cases, the status quo would prevail: that is, that only the district, county or unitary council—in Wales, the county borough—the lord of the manor, the owner or others with a legal interest in the land should be able to seek an enforcement order from the county court. Amendment No. 121 would reverse that change, so that any person could seek enforcement, even against "old" works.

We are committed to the principle that, if works are unlawfully undertaken on common land after the introduction of this Bill, anyone should be able to ask the court to take action. I think that that is common currency between me and my hon. Friend the Member for Sherwood. Everyone now has a direct interest in keeping commons open and unspoilt, thanks to the Government's historic achievement in giving people legal access rights over commons throughout the country. So for the first time, the Bill extends the power to seek enforcement action against unlawful works to any person or organisation.

My hon. Friend the Member for Sherwood has a distinguished record of personal interest in open space protection and public access, and I fully understand why he has proposed amendment No. 121, but it is about the past, not the future. The issue that it raises really boils down to this question: should any person or organisation be able to go to the court and ask it to enforce against unlawful works that were undertaken before the Bill even began its passage through another place?

In practice, the question is not that simple. The Limitation Act 1980 rules out enforcement against works undertaken more than 12 years ago. Moreover, as I am sure my hon. Friend the Member for Sherwood is aware, the effective window for action tends in fact to be much narrower than that, because the courts look very critically at any suggestion that they should make any type of order against works that are more than a few years old.

In reality, there is likely to be a limited number of cases in which the amendments would make a practical difference to the enforcement position. Our view is that where works were undertaken within the narrow time window and without consent it would not be right for us to open the scope for anyone to seek enforcement action. In the end, those responsible for such works did what they did on the basis of the more limited enforcement regime that then applied. Paragraph 6 as it stands strikes the right balance, and we do not think that it would be just to allow any person to apply to the county court for enforcement action in pre-Bill cases. The situation may, however, be different for future changes to unlawful old works. I hope that that gives my hon. Friend the Member for Sherwood a glimmer of hope.

Photo of Paddy Tipping Paddy Tipping PPS (Rt Hon Jack Straw, Lord Privy Seal), Leader of the House of Commons 4:15 pm, 29th June 2006

Will the Minister explain in plain words why the Government changed their mind on the date? The original Bill was satisfactory. Why was it changed in another place?

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs)

In our view, unless national authority consent is obtained, any person will be able to seek enforcement action against the maintenance or extension of unlawful old works. If the practical effect of the new work would be further to impede access, compared with the position before the new work was undertaken, the situation is as set out in the letter I wrote on 11 May to members of the Standing Committee. The letter is in the Library, but I might helpfully quote from it on maintenance of works:

"There appears to have been some confusion about this issue during debate so I thought it might be helpful to set our intentions as to whether consent under clause 38(1) will be required for maintenance to existing works. Works of any description will require consent only if they take place on the common, not if they stand on land adjoining the common, for example on neighbouring farmland. The physical boundaries separating the common for adjoining land, for example the wall between the common and the in-by or enclosed land, is customarily the responsibility of the occupier of that land and not part of the common."

So, works of maintenance could not require consent.

"New works on the common will not require consent if they are merely maintaining original structures that are lawfully there, provided that maintenance does not create any greater practical impediment to access than the original structure".

Examples might be structures that receive consent under section 194 of the Law of Property Act 1925 or those where such consent was never needed initially, perhaps because the original works were undertaken before 1926 or under statutory powers.

"New works on the common will not require consent if they are merely maintaining original structures that are lawfully there(6)— provided that maintenance does not create any greater practical impediment to access than the original structure.

If the original works were unlawful when originally constructed, then the situation is a little more complicated. Firstly, if they remain unlawful nothing in the Bill will change that and maintaining them will require consent as for any other works which restrict or impede access. Indeed the original works themselves will continue to require consent. We have clarified the fact that the appropriate national authority will be able to entertain a 'restrospective' application and this is set out in clause 39(7) of the Bill.

If the original works are no longer unlawful (because the time in which enforcement action could have been taken under the Limitation Act 1980 has expired) consent will be needed for maintaining them in the same way that it would be needed for other lawful works. This is where only if doing so creates any greater practical impediments to access than the original structure.

Any new works that would increase the size or footprint of previous works, and thereby the degree of impediment to access, will always require consent whether or not the original works had consent. This is because they are not works of maintenance, but works which themselves prevent or impede access."

I hope that that is helpful and provides light at the end of the tunnel for my hon. Friend the Member for Sherwood. Notwithstanding the cut-off date referred to in amendment No. 121, access authorities have powers under chapter 3 of part 1 of the CROW Act to provide means of access on access land. That would provide a way in which access could be promoted, whatever the status and age of the fencing.

My hon. Friend the Member for Sherwood asked what is, on the face of it, a very simple question—why did we change? I have not yet answered it. It has been evident today that the Government have changed a great deal since the Bill was introduced. On the whole, I believe that the changes have improved it. We have had to reflect on the balance of arguments presented to us both in Committee and in the other place. The consensus and compromise that we have sought to bring will enable us to achieve the intention that we all share—to improve the management of our common lands. That is what prompted us to change our views, so I ask my hon. Friend not to press his amendment.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am grateful for the Minister's remarks on amendment No. 114. It was clear from the comments of all hon. Members that they supported my aim. If I may put words into the Minister's mouth, I do not think that he entirely disagreed either, but he thought that he could achieve that aim in other ways. Ministers always say things like that. The principle remains that we do not want, and it would be unwise were it to happen, the national authority—in this case, the Minister—to be besieged by thousands of very minor requests to create works that could be dealt with more simply.

We will look carefully at the regulations and I hope that the Minister is right about the flexibility in clause 43, which he mentioned in response to my earlier intervention. I hope that he is also right about the ability to make exemptions and about fast-tracking. I was proposing not just fast-tracking, but no tracking, in that people should be allowed to use their initiative where appropriate in cases of emergency. We will study what the Minister comes up with. I know that he meant it when he said that in drafting the regulations, he will heed the views expressed this afternoon. I appreciate that.

I am sure that the Minister understands that this is an important point. Nobody wants "unlawful fences", to use the words of Paddy Tipping, but there may be times when a temporary arrangement is necessary, so a blanket opposition is not helpful. I suspect that even the most rabid enthusiast for open access would accept that there are times when common sense dictates that measures must be taken. What is important is that the common sense extends to not having to go through all the ramifications of applying to the Secretary of State for consent to do something. If the Minister accepts that argument and his regulations achieve that aim, I shall be happy. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.