My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Bach.)
My Lords, this amendment stands in my name and that of my noble friend Lord Livsey of Talgarth. It would make explicit that there are real advantages to setting up a statutory commons association. Without this addition, there is a real danger that, despite all the effort that has been put into this legislation by the huge number of interested organisations that have contributed over many years and by the Government themselves, it will be a dead letter.
In Grand Committee, frequent reference was made to the need to promote agri-environment schemes, not least by the Minister himself. There were also references to agri-environment schemes in earlier exchanges on Report. During a debate on Clause 27, the noble Earl, Lord Peel, said:
"I suspect that in most cases the formation of a commons association will be for the purpose of entering into an agri-environment scheme".—[Hansard, 28/11/05; col. 73.]
From my own experience of working with commoners on Bodmin Moor, I am sure that the noble Earl is right.
To interpolate for those who do not know Bodmin Moor, we have a number of very sensitive natural habitats—ones that will need careful protection and would benefit from agri-environment schemes, as commoners are aware. Members of your Lordships' House who do not know Bodmin Moor may know of it only as the habitat of the famous beast of Bodmin Moor, but there are other species there that require careful protection.
I was also delighted to note the positive comments from the Minister on matters relating to agri-environment schemes during Monday's debate. In response to Amendment No. 35, he said:
"Commons associations are to be established primarily to improve the management of agricultural activities and vegetation on common land".—[Hansard, 28/11/05; col. 75.]
If that is not an explicit endorsement of the purpose of our Amendment No. 38, I do not know what is.
This is a vital carrot. Since there are apparently no sticks—at least none is visible—in the Bill, this clear statement of purpose is all the more important. The context for this legislation is absolutely crucial, as I am sure noble Lords who have connections with the agricultural community will recognise. Farmers, and especially hill farmers, face an especially difficult and uncertain future. Economic viability is balanced on a knife edge for them. Smaller family farms are already being swallowed up by large ranching enterprises—and the most likely route for survival is through participation in agri-environment schemes. That is the clear direction to be taken by the common agricultural policy over the next few years. The current transition through to 2012 simply ratchets up the critical role of the schemes year by year. Even if there is a further round of reform of the CAP, as we are constantly told may be the case, the one element of relative certainty is that the agri-environment schemes will become even more vital.
I am sure that your Lordships' House is aware that this legislation has been many decades in gestation. The likelihood of a further opportunity to review and update the management of commons within the next 40 or even 50 years is very remote, so it must follow that we should place firmly in the Bill the need to make agri-environment schemes a clear responsibility of the new commons associations. At the very least, the preparation of management plans to qualify for those schemes should be an explicit function for them, and stated as such in Clause 31. My noble friends and I very much hope that the Minister will be true to his previous word and will accept our amendment. I beg to move.
My Lords, as my Amendment No. 39 is grouped with Amendment No. 38, perhaps I may take the opportunity to speak to it now.
"making rules relating to the leasing or licensing of rights of common", did not result in a commons association impinging on the rights of an owner of a common from leasing or letting his surplus rights. However, the Minister confirmed that the Government's own amendment dealt with the point and that there was no need for my amendment—and as a result I withdrew it.
On reflection, however, there appears to me to be a further anomaly that needs examination, in that there are a number of cases when commons rights, which are not technically rights as they are part of the surplus, have been registered incorrectly as rights of common, either by the owner himself or, more likely, by his tenant. That would have been done during the registration period of the 1965 Act, and I think done more as a belt and braces exercise than for any other reason. However, because those so-called rights appear on the register, albeit incorrectly, they could be subjected to Clause 31(3)(b), which in my opinion would be incorrect.
My amendment would prohibit a commons association being able to impinge on the owner's ability to let or lease such rights either now or in future. I should point out—and it is a crucial point—that such an amendment would not in any way affect the powers of the commons association to limit or impose conditions on the exercise of such rights under Clause 31(4)(a). A typical example would be when a commons association felt it appropriate to improve a reduction in stocking numbers across the common in order to comply with a particular agri-environment scheme, as the noble Lord, Lord Tyler, has just said.
So, in other words, this amendment simply seeks to ensure that a commons association would not have the power to interfere with the letting of those surplus rights of common which are owned by the owner of the common and have been incorrectly registered but will be dealt with in the same way as the other rights of surplus which are vested in the owner but were not registered.
My Lords, I shall speak to my noble friend's Amendment No. 38. I anticipate that the Minister may say that this amendment is not necessary because under Clause 32(2)(a) and (b) a commons association can take all sorts of powers. However, a theme running through every debate we have had about agri-environment schemes concerns how important they are. As my noble friend said, they constitute the carrot. I hope that the Government will consider putting them up-front. I submit that they are more important than most of the provisions in paragraphs (a) to (f) of Clause 31(3) as they would implement most of the things that the Government wish to see happen. If commoners agree to have an agri-environment scheme, that obviates the need for public money to be spent buying out rights. The preparation of such a scheme is a positive use of public money and has the desirable element of flexibility. It would take into account the fact that, over time, an over-grazing problem may develop into an under-grazing problem. An agri-environment management scheme can be adapted to tackle that situation, whereas the buying out of rights cannot. My noble friend's amendment is fundamental to what the Government want to achieve.
My Lords, I support what my noble friend Lord Peel has said. The rights of the owner are in jeopardy because of this Bill. It needs to be made absolutely clear on the face of the Bill that they are not in jeopardy. To try to benefit from an agri-environment scheme a commoner or a common holder could put forward a proposal to form a commons association against the owner's wishes. That association will be formed if it is deemed appropriate and the owner will have to abide by that. As the noble Lord, Lord Tyler, said, farming is on a knife edge and if in due course some farmers wish to sell their rights of common, Natural England will be there to snap them up with taxpayers' money. If there has not been a successful application to form a commons association, the more common rights that Natural England acquires, the greater the chance of a commons association being formed against the owner's wishes. Therefore, in order to guard the legitimate interests of the owner, it is imperative that it is clearly spelt out in the Bill that the other rights are not affected, although, as my noble friend Lord Peel made clear, once a commons association had been formed, it would have to abide by the rules of that association.
My Lords, I shall speak to both amendments. I have great sympathy with the amendment moved by the noble Lord, Lord Tyler. When certain interests are clearly defined in the Bill it seems strange that the most important one is not included. I hope that the Government will take that into consideration. My noble friend Lord Peel has raised a very important issue. I remind noble Lords that on the previous Report day on Monday we discussed an association that would be governed by 10 people. Therefore, it is even more important that the points made by my noble friend and, indeed, by my noble friend Lord Caithness are taken into consideration; otherwise, it is possible that the options open to an owner might put him outside the loop as it were. I support the amendments.
My Lords, I begin by speaking to Amendment No. 38. I start by making plain that it is not necessary, because what the noble Lord seeks can already be done under Clause 32(2)(a) through the power to enter into agreements. The list of functions in subsection (3) is only illustrative of those that can be given to a commons association under subsection (1) of this clause, which must relate to the management of agricultural activities, vegetation, or common rights.
We have already made it clear that the preparation and adoption of management plans is the sort of thing that can be undertaken under Clause 32 as an ancillary power. We see such plans more as an ancillary matter, which will help an association to carry out its functions conferred in its establishment order. Indeed, the amendment suggests that a management plan might be such an ancillary function, as it is to be drawn up to assist in an application for agri-environment funding. We remain unable to see any need to add that function to the illustrative list of functions in subsection (3).
On Amendment No. 39, subsection (3)(b) provides that one of the functions that can be conferred on a commons association is the power to make rules relating to the leasing or licensing of rights of common. Those rules can relate only to rights of common. The making of such a rule would not—indeed it could not—affect an owner's right to lease or license the surplus grazing on a common. We are aware of situations where owners or their tenants have registered their right to the surplus grazing on a common in the commons register. Registration means that such a right has now become a right of common. That is the conclusive effect of Section 10 of the Commons Registration Act 1965. In that situation such a right would become subject to the rule-making power in subsection (3)(b).
We certainly recognise the importance of an owner's entitlement to lease out or license his right to use the surplus. It would be open to the owner of a registered right to surrender it under Clause 13, thereby releasing the right back into the surplus on the common. Although a registered right of common would be susceptible to rules made under subsection (3)(b), the leasing or licensing of the surplus would not. The establishment of commons associations requires substantial support. The status quo is maintained regarding the owner's consent for others doing things on the land, such as managing the vegetation by means other than grazing. Leasing or licensing of the owner's surplus is not caught by the commons association's rules for commoners.
An establishment order could also make special provision where the owner's surplus has been registered as a right of common. That might take the form of giving an association a rule-making power, which would include some protection for owners who have that problem. Of course, it will be appreciated that the making of any particular rule will have to be agreed to by those managing the association, so there would have to be consensus for such a provision to be made. The exercise of rights of common or exercise of rights to use the surplus—in other words the actual use of rights by any person—would still be subject to the rules made by the association. It is only the leasing and licensing of such rights that would not be subject to any rules made under subsection (3)(b). A provision would have to be made in an establishment order to deal with the issue. I hope that the noble Earl will not press his amendment when we reach it.
My Lords, I understand that explanation, but under the Bill as it stands the surplus rights of common that have not been registered will be treated in one way and the surplus rights that have been registered—albeit incorrectly—will be treated in a different way. As the two are being differentiated, it seems that the Bill has inadvertently created a new type of commons right—in other words, surplus rights that have been incorrectly registered. I hear what the noble Baroness said, but I genuinely believe that she is incorrect.
My Lords, I should like to put a point to the noble Baroness for clarification. In the event of some of the surplus grazing having been registered as a right, and therefore under the 1965 Act having become a right, surely it is possible for that right to be surrendered back to the owner of the soil.
My Lords, my understanding is that the noble Lord, Lord Inglewood, is correct. I hope that I will be corrected if I am wrong. I am not aware of any circumstance in which the error to which the noble Earl refers has occurred. I will look into it and see whether we have any evidence that it has, but my understanding is that the result of the owner having changed their position voluntarily under the Commons Registration Act 1965 is that it is a fact. My instinct is that one would be changing the effect of legislation retrospectively were one to interfere with that. I know that the noble Earl is greatly taxed by the issue. I am sure that he would appreciate further clarification, were it to be helpful to him, before Third Reading.
My Lords, I cannot pretend that I am not very disappointed by the noble Baroness's response. I am disappointed too that the noble Lord, Lord Bach, has not stirred her conscience to be more positive, because he was extremely positive in previous discussions on the whole issue of agri-environment schemes. I refer to the expressions of support given by my noble friend Lady Miller of Chilthorne Domer and the noble Baroness, Lady Byford. They both emphasised that we already have a number of comparatively minor issues illustrated under Clause 31(3)(a) to (f), including,
"establishing and maintaining boundaries . . . removing unlawful boundaries and other encroachments . . . removing animals unlawfully permitted to graze".
If those are the key illustrations of what a statutory commons association seeks to pursue, there will not be a great motive to set up the associations. The main motive for doing so all over the country will be to make the area eligible for agri-environment schemes.
I therefore find it difficult to understand why the noble Baroness is ruling out the amendment on those grounds. However, I understand the way in which this place works, and I hope very much that she and her colleagues will think carefully—perhaps in respect of the representations from farming and other interests that I am sure that they will receive during the further stages of the Bill, both here and in the other place—and look at the issue again. It should be absolutely explicit, and I detect that there is support in other parts of the House. Nevertheless, at this stage, I beg leave to withdraw the amendment.
My Lords, in Committee we had many contributions on fees and the amounts that might be charged. The noble Lords, Lord Williams of Elvel and Lord Chorley, the noble Earl, Lord Caithness, and several others spoke about their concerns with this section of the Bill. We have statements from existing associations of commoners that cite fees of a few pounds leading, because of the numbers involved, to annual budgets of £50,000 or thereabouts. That is modest for some of what may be bigger groupings. Such organisations work to the clear benefit of the holders of rights, the land, and probably the general public. Smaller commons with fewer commoners may not have the formal organisation at all. One reason may be that the cost of creating one could be prohibitive.
Under the Bill, however, commons associations will be encouraged—if not enforced—even where the burden is thinly spread. We are concerned that the commoners, some of whom will have small incomes—I suspect that some will have very little income at the moment—should not be placed under the type of pressure that is becoming ever more frequent for pensioners who are faced, for example, with rapidly mounting council tax bills. We are even more concerned that the setting of unreasonable fees may force commoners to abandon their rights. Were such a thing to happen, there is no doubt that some people would be unscrupulous enough to try to take advantage of the situation.
When we debated this matter more fully in Grand Committee, the noble Baroness, Lady Farrington, stated:
"we envisage associations raising funds through subscriptions paid by commoners and other participants".—[Official Report, 9/11/05; col. GC218.]
Who, in particular, are "other participants"? She went on to use the expression, "at a modest level". I believe that a "reasonable" level is probably better phraseology and our amendment uses that word. I hope that the Minister who responds will consider the amendment as a reasonable contribution which I hope will improve the Bill.
In her response, the noble Baroness, Lady Farrington, said the setting of fees was primarily a matter for the associations. Yes, that is right; but it is important that the associations set fees that are relevant and appropriate, and we feel that the insertion of our little word "reasonable" is preferable to her word "modest", as recorded in the Official Report. I beg to move.
My Lords, I certainly agree with the general thrust of the amendment. Clearly, "reasonable" is a reasonable word. However, it is difficult to define and it could hamstring some commons authorities if different people interpreted it in different ways. I think that the word "modest" is preferable but I recognise the basic thrust of the amendment and wonder whether some solution can be found.
My Lords, the amendment would ensure that any fees required to be paid to a commons association in connection with the exercise of rights of common, or rights to use the surplus, or in connection with membership of, or participation in, the association, are reasonable. One of the ancillary powers given to a commons association is a power to raise money. This clause makes it clear that the power to raise money can involve the levying of fees in connection with the exercise of rights of common, or exercise of rights to use the surplus. Money can also be raised through charging a membership fee or a fee for participating in the association. These are the approaches most likely to be taken when raising money to cover the operating costs of an association.
Where interests in a common see benefits from forming an association, be it voluntary or statutory in nature, charging a fee in connection with the exercise of rights is a generally accepted approach for providing the small level of income required for operating purposes. We do not expect any fees that are levied to be very high. The levying of fees in connection with the exercise of rights is not unusual. The Dartmoor Commoners' Council has charged a small fee in connection with the exercise of rights for the past 20 years to fund its operations—for active graziers it has been 66 pence per livestock per year and for inactive graziers, 11 pence, with a minimum payment of £5 for any rights holders.
Many existing commoners' associations charge a small annual subscription for membership which does not appear to cause any great hardship. For example, the Federation of Cumbria Commoners, with over 500 members, charges a small annual fee for membership, which, I believe, is £10. The size of the fee is decided through a majority vote at the annual general meeting of the federation.
Any fee for membership, or in connection with the exercise of rights, is likely to be agreed through a majority vote taken by the representative body of the association or by all participants in the commons association at a general meeting. Fees will not be imposed by some external body; they will be determined by those who will have to pay them through a majority vote. As a result, any fees levied are likely to be at a level which is acceptable to those who will pay them. The reality is that members of an association are not going to levy unreasonably large fees on themselves.
In any event, any exercise of a statutory power necessarily implies that the power must be exercised in accordance with the rules of natural justice. So the power to set fees under this subsection already means that, as and when it is exercised, it must be done in a reasonable manner, taking into account all the circumstances, including the purpose for which any fees are being levied. That is why we do not think that the words "reasonable" or "modest" need to appear in the Bill.
The noble Baroness asked who the other participants were who might have to pay. Apart from the commoners, they might include the owner or the owner's tenant or licensee or anyone else entitled to make use of the grazing. In addition, people such as sporting rights holders might have to pay some sort of fee to exercise those rights.
My Lords, perhaps I may ask the noble Lord a question on a point that puzzles me. Under Clause 32(2), associations can acquire land. But with the sort of fees that the noble Lord was talking about—whether it is £10 in the case of the Cumbrian Commoners or £5,000 a year—they are probably not going to get very much land. If the association wished to acquire land under subsection (2)(d), would that be done through fees? In that case, it would amount to rather a lot of money and the fees would hardly be "modest". Can the Minister explain that?
My Lords, I am grateful to the noble Lord for that question. Indeed, they will have the right to acquire or dispose of land, but I point out that they are potentially able to raise money from sources other than fees. Large sums of money for capital expenditure or more significant improvements could be raised through other means—for example, entering into agri-environment schemes, wayleaves for easements or car parking charges, if that was appropriate.
Perhaps I may give some examples. On Danby Common—I do not know whether that North Yorkshire common is known to noble Lords—bracken control and cattle gridding were achieved through a combination of local and European Union sources of funding, including Objective 5b money. The Gower Commons initiative has undertaken cattle gridding, agricultural management and access work on commons with the assistance of money from the Heritage Lottery Fund. More than £200,000 in match funding has been provided by labour from commoners themselves on that common. And statutory bodies, such as boards of conservators, are often funded through precepts on local residents collected by the local authority through the council tax. My example there is the Malvern Board of Conservators. I am afraid that I have taken some time to answer the noble Lord's excellent question, but the answer is that there are other ways of raising money—not just in theory but in practice, too.
My Lords, before my noble friend sits down, can he confirm that commons associations will have no ability to borrow money from banks on no security whatever or on any security in order to acquire land or whatever it might be?
My Lords, I am looking at Clause 32(2) as I answer my noble friend. There seems to be no reason why commons associations should not be able to borrow money from a bank, provided that the bank is prepared to lend it to them.
My Lords, I am grateful to noble Lords for their contributions. In Committee, we had a rather lengthy debate on this subject and I am sorry that my noble friend Lord Jopling was not able to be present then. Many questions were raised on how associations can and may raise money and for what the money will be used. Some people have great fears about the ability of commons associations to acquire land, which would be open to them, if they had that amount of money.
I thank the Minister for giving those examples, but I have to draw his attention to the cross-over between where we are with this Bill and with the CROW Act. The CROW Act is enacted over the whole of the UK and says that people can park anywhere, walk anywhere and go anywhere; people do not have to go through car parks or use car parks, which could be a bonus. The fact that in towns we pay to park our cars and think nothing of it causes me to smile, as people in the country have a very strange view and a great reluctance to put £1 in a box to park their cars. If people do not have to park their cars in a car park, I suspect that they will park them wherever they possibly can. I do not follow the Minister's logic and I do not believe that some of the examples that he gave will necessarily raise the amount of money that he believes will be raised.
I am faced with a very difficult situation. I am not happy with the Minister's response. I know that I cannot go away, asking him to think about it again, as that is not within the rules of Report stage. That is one of the disadvantages of having the Committee stage in Grand Committee. Ministers may shake their heads, but it makes it very difficult. I do not want to lose on this issue, as I probably shall, but I intend to seek the opinion of House.
moved Amendment No. 41:
Page 20, line 19, at end insert—
"(4) A direction under subsection (3) must set out the reason why the rule is being revoked.
(5) Before revoking any rule under subsection (3) the appropriate national authority must consult—
(a) the commons association; and
(b) any other person it thinks appropriate."
My Lords, to address concerns expressed by Peers in Grand Committee, we have reconsidered Clause 35. Amendment No. 41 does two things. First, it ensures that where the national authority gives a direction revoking a rule made by an association, the direction must set out the reason why the rule is being revoked. Secondly, it requires the commons association to be consulted before any rule is revoked and allows the national authority to consult other persons as it sees fit. We agree that the national authority, having granted rule-making functions to an association, should be a little more circumspect before revoking such rules. We accept that local circumstances and the views of the commons association need to be taken into account, and our amendment achieves that.
Government Amendments Nos. 42, 43 and 44 are in response to concerns expressed by Peers in Grand Committee that subsection (4) appeared to allow the national authority to amend or repeal any enactment, rather than those listed in subsection (2). We have reflected further on this issue and have decided to remove subsection (4) for the avoidance of any doubt.
Amendments Nos. 43 and 44 make clear that the power in this clause may be exercised only as part and parcel of an establishment order that ensures that the consultation process and the requirement for substantial support from key interests will automatically apply to any changes made under Clause 36.
We think that the amended clause meets the concerns expressed in Grand Committee and provides an appropriate mechanism for ensuring that adjustments can be made as necessary to existing arrangements to allow new associations to operate effectively. I beg to move.
My Lords, Amendment No. 41 is a very welcome response to our Grand Committee amendment. I thank the Minister for returning in this way. It is a reassuring amendment and ensures that a national authority will not be able to revoke a rule without explaining the need for it to the membership of the association. I think that we are all agreed that commons associations would be seen to be incredibly toothless if the appropriate national authority could strike down any of their rules without explanation.
Amendment No. 44 is also a welcome amendment because it keeps the powers conferred on the national authority in check. Under this amendment the national authority will not be able to make an order that repeals any other enactment.
My Lords, we also welcome the amendment. Clause 35 is still pretty draconian, but this softens things somewhat. I assume that a commons association itself can still alter or revoke rules. The amendment would ensure that the commons association must be given reasons for revoking the rules. The amendment specifically inserts the words,
"under subsection (3) the appropriate national authority must consult", with the commons association and other persons which it thinks appropriate. Although this provision is better, our view is that this is still a pretty hard-ball sort of clause in the context of the Bill.
My Lords, I thank the noble Duke, the Duke of Montrose, for his kind words and I welcome the support of the noble Lord, Lord Livsey. We responded to points made by those noble Lords in Committee, as well as points made by the noble Earl, Lord Caithness, and the noble Lord, Lord Tyler. I hope that noble Lords will support the Government's amendment.
moved Amendments Nos. 42 to 44:
Page 20, line 22, after "order" insert "under section 26"
Page 20, line 24, leave out from the first "conferred" to "in" in line 25 and insert "on a commons association"
Page 21, line 1, leave out subsection (4).
On Question, amendments agreed to.
Clause 37 [Variation and revocation of establishment orders]:
moved Amendment No. 45:
Page 21, line 15, at end insert "to an adjacent commons association for a period not exceeding 12 calendar months"
My Lords, the Bill provides for the transfer of rights of property and liabilities in cases where it is deemed that a commons association is no longer in operation or in a position to operate effectively. The Bill does not state to where the transfer should be made.
We believe that it would be wrong to transfer rights and property to a governmental organisation if there were the slightest chance that a new association could arise. We feel that there should be provision for the short-term transfer to another commons association, pending either the creation of a replacement association or the takeover by an existing one. We do, however, believe that the interregnum should be short and within a definite closure date.
We discussed this issue at some length in Committee, and, as the Minister said, there may well be good reasons why the association should be wound up. It may be difficult to find an association willing to take on the assets and liabilities, but we are still not entirely clear on what liabilities commons associations might generate during their lifetime and what will be involved in their winding-up or dissolution. I beg to move.
My Lords, we see this as keeping a commons association on hold for 12 months. It is undoubtedly desirable that if at all possible the commons association can be revived. It seems to us that one of the few ways of doing so is to put it into the—shall we say?—"co-operative custody" of an adjacent commons association for a period of 12 months. The amendment seems to us to be very reasonable. In the circumstances which we and the noble Duke have described, it is probably a constructive way to go about such a problem.
My Lords, as we stated during the debate in Committee when we discussed this issue, an association may be wound up for a number of reasons and we must be able to provide for the transfer of its assets and liabilities in a range of circumstances. An association will undoubtedly have some assets—perhaps unspent fees or subscriptions from commoners, or property—and may have acquired rights of common that need to be dispersed. Of course, it may also have liabilities in the form of debts or outstanding obligations under agri-environment agreements. If an association is wound up, that must be done under the same procedure used to establish an association.
Clause 37 describes that procedure, with its requirement for consultation and substantial support for the making of an order. In other words, interested parties in the association will have an opportunity to make representations about what should be done with the assets and liabilities of the association. There must be substantial support for the winding-up, just as there was for its establishment. An association will not be wound up without due regard to the interests of those involved in the association and the commons over which it has jurisdiction.
In some cases, an association may be wound up to create a new association across a different grouping of commons or with completely different functions and representations of interest. The noble Duke recognised the possible need for such action in Committee. In such cases, it may well be entirely appropriate to transfer the assets of the old association across to the new one but, in other cases, it may not be appropriate to create a new association—if, for example, commoning activities ceased. In such a case, it is more likely that the property belonging to the association would be distributed among the participants of the association, in accordance with some generally agreed formula. Of course, that would happen only after the liabilities of the association had been settled.
All the property of the association would not be transferred automatically to Natural England or some central government body as with liquidation of a company, those who had invested in the organisation would have a claim on any assets when it was wound up. The advantage of Clause 37, as we see it, is that it allows assets and liabilities to be transferred to a new association, if appropriate; to an existing commons association, if appropriate; or to any other person or body. We do not want to constrain that power, because it may be difficult to find an association willing to take on the assets, liabilities and responsibilities in question. There may be no neighbouring association established in the area and no prospect of an association being established in future. That is why we want maximum flexibility to transfer assets as best makes sense in all circumstances. That is why, although we absolutely appreciate the point behind the amendment, we cannot accept it and I invite the noble Duke to withdraw it.
My Lords, of course we are disappointed by the Minister's response. What he said raised another question in my mind which perhaps I should have thought of before. What happens if a commons association goes bankrupt and the members decide that they do not want to disband? Who has the power to collect money from whom? The commons association will have no assets as such. The Government could step in and ask Natural England to pick up the tab, but such associations could continue for a period in debt. I suppose the main thing against them would be that no one would lend them any more money, but they could continue indefinitely in a state of debt, refusing to be wound up. There are always difficulties that one has not quite foreseen. This one is a stage further than the discussion that the Minister put before the House a few minutes ago.
My Lords, the noble Duke poses an interesting question. He may not have thought of it before; I certainly had not. It is best that I write to the noble Lord on that suggestion.
My Lords, in moving Amendment No. 46, I shall speak also to Amendments Nos. 47 and 48 in the group. It is important that Part 3, particularly Clause 38, is tightly and correctly drawn so that it benefits everyone; whether they are people who want to access and to use the countryside as they do now or more than before or those who have to cope with land management of the commons. In Committee we had a lengthy debate about works on common land. My noble friend Lord Peel and the noble Lords, Lord Livsey and Lord Greaves, recognised the need for clarification in this part of the Bill. The Minister stated that the Government had tried to strike a balance, although he dismissed inserting the word "materially" out of hand. He did not care for it. In the mean time, I hope that he has thought more about it. I think that my trouble is that perhaps I am becoming too reasonable in this day and age, but there we are.
In the light of what I shall say, I want the Government to consider inserting the word "materially" again because it is enormously important. In Grand Committee the Minister said:
I do not doubt that—I am sure that is correct—but one must remember that in 1925 there was no right of access, which obviously has now kicked into action following the CROW Act 2005.
I should like to thank the Minister for his follow-up letter dated
The object is to restrict the definition of restricted works which materially impede access. To make that more acceptable and workable, we have created a new category for fencing by introducing it in Clause 38(2)(c) so that it is separated from works which prevent or impede access so as to create, in effect, an absolute prohibition and to take away the argument that it would be difficult to find whether fencing in practice impedes access in a particular case. The argument that the noble Lord made when he dealt with these provisions was that the wording simply reflected the provisions in the old law, which is why I raise this again.
In Committee, my noble friend Lord Peel spoke of the need for fencing and ditching, and the construction of ponds and grouse butts—I could think of many other ideas—which may slightly impede, but technically do not impede, access in the way that some people might view this part of the Bill. We are trying to ensure that moors, particularly grouse moors, and, in general terms, whole commons, can be managed properly and successfully. We seek to minimise any potential acrimony which might be raised if this provision is not correct between those who access land as users, for whatever reason, and land managers. I beg to move.
My Lords, I wholeheartedly support my noble friend's amendments and I shall address my brief remarks principally to Amendment No. 46. The amendment is more than desirable if this part of the Bill is not to result in potential acrimony and confusion. As I said in Committee, common land is no different from any other type of land in that it requires positive management in order to achieve its objectives, whatever they may be. They could be agricultural, for sporting purposes or for nature conservation. More often than not the three are rather effectively intertwined. I would not like to speak for Wales but we should remember that most commons in England have been designated as sites of special scientific interest and are therefore subject to management plans agreed with English Nature as it is now, and Natural England as it is to become.
As my noble friend Lady Byford has pointed out, essential management activities inevitably result in some disruption to the land. The construction of grouse butts or scrapes on Dartmoor common for the benefit of green plover, the opening of ditches and the maintenance of watercourses are relatively trivial issues, but if we are to avoid vexatious and expensive cases being brought against those responsible for carrying out such management tasks, in my view a sense of proportion must be brought into the equation. The Government argue that the restrictions imposed simply reflect the provisions set out in Section 124 of the Law of Property Act 1925, but my noble friend Lady Byford was quite right to point out that in those days we were talking about grazing animals. Now we have a completely different situation. The right to roam is in place under the CROW Act so that these activities may now affect people. Imposing restrictions on people's access could be looked at very differently from the imposition of restrictions on a grazier to implement his rights of pasture on a common.
I appreciate that the word "materially" does not in itself lead to a clear and explicit definition, but to "impede" something is an absolute term. Even if the works are of a truly trivial nature, as I have tried to describe to noble Lords, they could still technically interfere with a person's right to exercise his access. There must be room in the Bill to introduce a degree of common sense. This amendment would provide a sensible solution that would allow the courts to maintain some proportion in this area.
I turn briefly to Amendments Nos. 47 and 48. I can see the good intentions behind them. They would elevate fencing into the category of restricted works in recognition of the fact that it is usually the most contentious issue when it comes to obstructions on common land.
I hope that the Minister will accept the amendment. It is essential to ensure that co-operation that we have seen on all sides should continue in this area. Given that we have reached agreement on so many aspects of the Bill, I should point out that this is our last sticking point. If there is some way of resolving it sensibly, the whole House would be extremely grateful.
My Lords, I should like to add a few words to those of my two noble friends. I agree with everything they have said and I warmly support the amendment. However, I add my support for another reason which has not been mentioned in this debate, although I realise that it may have been discussed in Grand Committee. I am afraid that I was abroad for much of that period and therefore was not able to attend the sittings regularly.
Over the many years that I represented a large part of the Lake District and the Yorkshire Dales, I would travel to and from my home and around my constituency over a lot of unfenced common land. Every year my heart bled when going past dead lambs and dead sheep, which had been run over because they did not understand what a road meant. I remember thinking, "If only it were possible to erect simple fencing to keep livestock on the pastures and commons rather than wandering about on the roads". I do not know what the figures are, but years ago, when I was involved with the National Farmers Union, I remember seeing the most appalling figures on the amount of livestock—lambs in particular—which had been killed through being hit by passing traffic. If the amendment will make it slightly easier to erect fencing to protect lambs from this annual carnage, that is another very good reason to support it.
My Lords, I have a certain sympathy with what the noble Earl, Lord Peel, and the noble Baroness, Lady Byford, are saying. Speaking for Welsh commons rather than English commons, there are occasions when, in order to round up sheep, hill farmers need to go out to erect a sheep pen and then take it down again. Where I am doubtful about the amendment is the meaning of "materially", and I would have a genuine problem if my noble friend wished to accept it.
My Lords, in moving her amendment the noble Baroness said that in 1925 there were no rights of access. That is not technically true. The Law of Property Act 1925 gave rights of access over urban commons, many of which—especially in the north of England—were very far from urban. But that is only a partial correction, which I hope she will accept.
We had an interesting discussion about this whole question in Grand Committee. I do not think that we bottomed it properly then and I do not think we are doing so today. The Government need to think a little more carefully about this issue before the Bill finally gains Royal Assent.
There are two parts to the amendment—one relating to fencing and one relating to the word "materially". I shall deal first with the question of the word "materially". At the moment, subsection (2) defines "restricted works"—that is to say, works which have to have consent; there is a prohibition on such works without consent—and paragraph (a) refers to,
"works which have the effect of preventing or impeding access to or over any land to which this section applies".
Quite clearly, any works which stop people accessing common to which they have a right of access through the CROW Act or any other legislation are to be included in the category of works which require consent.
I understand the points made by the noble Earl, Lord Peel, but my concern relates to the words "preventing or impeding access". Can the Minister tell the House what is the difference between "preventing" and "impeding" and why two words are used instead of one? The more I think about the word "impeding" the more I do not understand exactly what it means.
I am thinking of situations on the ground, as was the noble Earl. If people need to dig a ditch, for example, to enable sensible management of the land, wherever the ditch goes it will prevent people walking from one place to another unless, depending on how big it is, they jump over the ditch, swim across it or clamber down and clamber up again. So it will prevent or impede their access in that sense. But if a plank bridge is put across it in a sensible place, the ditch will not materially impede their access because all they will have to do is walk a few yards one way, cross the ditch and walk a few yards back on the other side.
It is clearly practical and sensible that people should be able to carry out minor works to do with managing a piece of moorland or fallow land—particularly moorland, where ditches are concerned—without having to apply to Natural England. As I understand it, Clause 38 says that if you want to dig a couple of entirely sensible drainage ditches on a common, you cannot do it without going through the procedure of applying to Natural England. If you want to carry out substantial works on a common, it is sensible that you should have to apply. But if the provision applies to minor works such as the noble Earl mentioned, it will put in place bureaucratic barriers which will not be sensible when a commons association is managing a common. There is a concern here. "Materially" may not be the word; I should have put "significantly", although I am not sure that that is right either. There is a de minimis issue here of people being able to get on and do the things that are listed in Clause 38.
The second point concerns fencing. I am not sure whether the amendment does what Conservative Members want it to do, or perhaps it does. As I understand it, the amendment would impose stricter rules for fencing than are provided for in the Bill. If they want to do that, I will support them, although I can see circumstances in which de minimis fencing—or temporary fencing, if it is a question of controlling and managing stock—might be sensible. But if the Conservatives are saying that restricted works should include fencing per se rather than only fencing which has,
"the effect of preventing or impeding access to or over any land",
I would support them, and welcome them to the side of the angels for once.
The basic points put forward by the noble Baroness and the noble Earl are important. We want a regime that prevents people doing things on commons that stop others getting sensible access to any part of the common to which they can get access. We do not want to force commoners, owners, commons associations or anyone else to go through intricate bureaucratic processes to carry out minor works which are sensible for the management of the common.
My Lords, I am grateful to those who have spoken in this short debate. I agree with my noble friend Lord Greaves that the movement of the words "the erection of fencing" from subsection (3)(a) to what would be subsection (2)(c) poses a question which I hope those who tabled the amendment can clarify. However, the general thrust of the amendment is to be welcomed. The appropriate national authority would not have to get involved unless the works proposed for the common were substantial.
Amendment No. 46 would insert the word "materially". I have no inhibitions about that word and think it improves the Bill. It would ensure that minor works are allowed. I was a farm manager on an estate in Scotland which had a grouse shoot. We had very strict rules about the number of ewes we could keep to ensure there was enough cover. There are many small things that need doing to improve the environment and to have to go to the appropriate national authority for permission all the time is over the top. There is no question about that. These works are often needed to improve the biodiversity of the commons. Where we are trying to establish the grouse living in the Black Mountains area, which is becoming more successful, the spin-off for other wild birds is considerable.
The whole question of fencing in Amendment No. 47 relates to the extent of the fencing and for what purpose. One can envisage small enclosures for temporary gathering of livestock, which can be very important for animal welfare. I am sure that the fencing would not block access except in extreme circumstances, such as foot and mouth. Defra was involved in the last outbreak and insisted that fencing was erected to divide hefts between different hills of sheep to avoid the spread of the disease. In some circumstances fencing is necessary on common land to avoid the sort of matters to which the noble Lord, Lord Jopling, referred. Certainly, in the Brecon Beacons in the days of the Welsh Office, there was an agreement, because of the carnage of sheep being killed, for the main road between north and south Wales to be fenced on both sides. Access to rights of way was not impeded, but improved. Many more people now go to the Beacons through these access points than previously. We can see the evidence of that every weekend. However, that was a special circumstance.
Amendments Nos. 46, 47 and 48 do not seek completely to fence off an area or impede access. Management of conservation or routine livestock operations might be affected if the appropriate national authority were involved in making slow decisions because it would take a lot longer to achieve what are often routine operations. I support the amendments.
My Lords, notwithstanding my personal views about statutory commons associations but putting on my surveyor hat, if we are to have them they need to work as practically and sensibly as possible. That is what we are aiming for in this part of the Bill. As my noble friend Lord Peel said, this is the crux of how the legislation will work.
We are living in an increasingly litigious society. Not so long ago, I came out of hospital and was approached by a man who I stopped to talk to and he said, "You know you can sue if any of these things have happened". I thought what a sad world we had come to if such people stand outside the gates of hospitals. There are extremists at every end of the pendulum. When I was responsible for the countryside as a Minister, I remember saying to a member of the Ramblers Association, "You would not mind one bit if the countryside was completely concreted over as long as you had a full right of access to every single bit of it". I can see this matter being a particularly troublesome area.
An owner or the commons association could do something that is necessary for the good management of the common, which is probably in line with a management agreement. That could lead to frivolous litigious action, which would be very good for the Minister's previous profession who would rub their hands at the thought of getting more fees. Sadly, I can see this matter going to those sorts of extremes and surely that is exactly what we need to avoid. Therefore, I support the amendment moved by my noble friend Lady Byford to insert "materially". If the Minister does not like "materially", he should consider the weight of opinion that has come from all sides of the House, including his own, on this issue. This part of the Bill is not yet right. I know that he would like to get it right and we would like to get it right. I am sure that he will want to reconsider to see how the clause can be adjusted so that we do not have problems in the future.
My Lords, I thank noble Lords for an interesting debate on Part 3, which is an important part of the Bill. Amendment No. 46 proposes the insertion of the word "materially" into Clause 38, and provides that only works that are a material impediment to access, together with those that prevent access, are covered by the controls on works. Amendment No. 47 provides that fencing would be a type of work that would always need the consent of the authority, as the amendment removes the test that the fence must prevent or impede access. Amendment No. 48 is consequential to Amendment No. 47.
These amendments touch on the question of how we ensure that the controls on works cover only those works which prevent or impede access, and do not extend to works that do not. As a consequence, I understand precisely what the amendment is trying to achieve, and I agree that it is in everyone's interests for there to be clarity on the question of the works covered by the controls. It is certainly a different and better group of amendments than was tabled in Committee, and we certainly see no objection to part of it. Amendment No. 47 clarifies fencing as a type of works that should be covered by the controls in all circumstances. But we still have difficulty with the introduction of the word "materially", even if only in relation to works that impede access.
This seems an appropriate moment to break off to answer the noble Lord, Lord Greaves, who asked about the difference between "prevent" and "impede". A continuous fence around a common would prevent access, while a ditch or embankment would impede access. These are words that have been used for many years, as the noble Lord knows, and have not really caused problems. In shorthand, "prevent" means "stopping altogether", while "impeding" means "obstructing" and perhaps "stopping temporarily". There is a real difference between the two words.
There is a raft of types of work that fall into the category of impeding, rather than preventing, access—for example, ditches, embankments, bollards and railings. It seems to us that the amendment might send misleading signals to those undertaking such works and as a result might encourage some works with a very significant impact on access being undertaken without consent. I do not want to repeat everything I said in Committee, but works that present no impediment to able-bodied people might impede the disabled. Other works might impede horse riders, those exercising common rights and, dare I say it, those who are lawfully allowed to drive on commons. The present construction of the clause ensures that all those issues are considered and do not get overlooked.
I listened with great care to the points made by all noble Lords, but I shall refer particularly to the points made by the noble Earl, Lord Peel, during Committee. We share his view that common land needs to be managed effectively—we all share that view—and that works necessary for the proper management of the land that do not prevent or impede access to it should not be subject to these controls. The difference between us seems to be that the noble Earl believes that Clause 38 somehow changes the position in respect of the type of works covered by the controls, and goes further than previous provisions contained in the now famous Section 194 of the Law of Property Act 1925. While I accept entirely that the area of land to which the controls apply is modestly different, because Clause 38 applies to all registered common land, not only to land subject to rights of common way back in 1926, I do not believe that Clause 38 introduces any significant changes to the types of works covered by the controls. If there was some misunderstanding about the nature of the controls contained in the 1925 Act at the time, that is unfortunate, but we cannot allow that to dictate our decisions now.
It may help the noble Lord if I explain that most of the works with which he is concerned do not in our view constitute works that would prevent or impede access. I wish to put that on the record. I will boldly assert that setting Larsen traps or crow traps does not fall within scope. Similarly, I cannot see that a scrape for lapwings is the type of works that would be caught by the controls in Clause 38. I would go so far as to say that constructing a small shooting butt on a very large common is also so slight in its context that, if it does impede access, it is likely to fall outside a de minimis test which the courts would employ in deciding whether to enforce against any breach of Clause 38.
I emphasise that the reference to ditches, trenches and embankments in Clause 38(3)(c) is intended to add clarity, to make it clear that these are the types of works that may prevent or impede access. The Bill does not provide that all such works prevent or impede access: that will be a question of fact in each case. The maintenance of such structures—for example, the clearing of ditches—would not in my view be caught by the controls.
The noble Earl, Lord Caithness, talked about frivolous challenges. We have heard that the controls in Clause 38 will be enforced more assiduously than before because Clause 41 enables anyone to go to court to enforce them. It has been suggested that this will lead to enforcement by members of the public or organisations in frivolous or vexatious cases. I do not accept that. First, experience shows that people rarely bring actions in court, even though they may have the power to do so. Court action still tends to be a matter of last resort. Secondly, the courts know very well how to deal with litigants who bring actions in respect of trivial matters. They may refuse to grant the order, or they may decline to award costs to the applicant, or they may adjourn consideration of the matter to give the respondent time to apply for consent for the works in question.
We are told that actions will be brought to abate minor features such as shooting butts. That would be surprising to say the least. Even if they fall within the controls, we think that amenity organisations will have bigger fish to fry than such matters; unlawful fencing and buildings on common land are far more likely to be the target of action.
As I have said, the scope of these controls differs very little from those contained in Section 194 of the Law of Property Act 1925. I do not accept the argument that we should move the goalposts in this Bill because people were previously able to undertake unlawful works without fear of enforcement. The noble Baroness referred to the letter I sent to noble Lords. I thank her for her kind comments about it. I wish to quote part of it that is relevant to this debate, which states:
"I would like to clarify a misunderstanding about access. The Law of Property Act 1925 itself (in Section 193) introduced a public right of access to certain urban commons and manorial waste, with the option for landowners of granting access by deed over other common land; a right of access to other commons may also have existed under Schemes of Management made under the Commons Act 1899. De facto access was also available on many other commons. Our understanding is that section 194 was enacted as a political compromise"— they did it even then—
"specifically to ensure that de facto access to rural commons (not otherwise subject to rights of access) was preserved by regulating the powers of the landowner to erect fencing or other physical impediments to that access, notwithstanding the absence of any legal right to enter on the common. Introduction of a right of access via the Countryside and Rights of Way Act 2000 has only changed the position inasmuch as the public have a legal right of access to a far greater area of land".
Our case is that Section 194 was, even then, about protecting de facto access.
However, we have also conferred on the national authority in Clause 43 a power to exempt works from the controls. That will enable us to introduce, if necessary, greater clarity where there is real uncertainty. I cannot give an assurance that we shall make orders to exempt any particular works—we shall come to that discussion a little later—but I certainly intend to consider the scope for exemption orders as part of our programme for implementing the Bill and bringing into force the provisions of Part 3.
I hope my comments will, at least to some extent, allay noble Lords' concerns about minor works. In the light of those comments—I have chosen my words carefully for the record—I ask that these amendments be withdrawn.
My Lords, I am very grateful for the many contributions to this important debate. My noble friend Lord Caithness was right to raise the whole question of litigation. The fact that the incidence of litigation is increasing on the part of people in every walk of life is something of which we are not proud; it is a sad reflection on our times. I would hate to think that in 10 years' time we shall say to the noble Lord, "We told you so". That would not bring us great joy. I hope that the noble Lord considers that I am genuine in those remarks.
My noble friend Lord Jopling described the difficulty that arises when animals, particularly sheep and lambs, stray on to the roadside. The noble Lord, Lord Livsey, spoke of a place where that problem was so great that people were required to fence off the relevant land. That is not a new problem.
I say to the noble Lord, Lord Greaves, that we tried to produce an amendment which we considered would help in practice and would be acceptable. It constitutes a halfway house and would be less restrictive than the measure in the Bill. We are anxious to ensure that where people have a genuine right of access to common land—in some places that has not been possible before—they should be able to access it and feel confident that they will not experience difficulties due to works being carried out on the relevant land. I hope that answers the question posed by the noble Lord. There is no doubt that we all wish to ensure that the measure works.
I am grateful to the noble Lord, Lord Williams of Elvel, for his half-support for the word "material", although he and I both accept that that may not be the right word. I am not wedded to it, but I am disappointed that the Government have not made any other suggestion to lessen the bureaucratic way in which the measure will operate. I believe that on Monday the noble Lord, Lord Bach, launched deregulation, or less regulation, for farmers, yet here we are passing still more legislation—
My Lords, deregulation would be even better than better regulation, but that is another matter. I have not read the noble Lord's speech in full but I shall certainly do so. There is a serious problem with the current situation. I am grateful to the noble Lord for quoting again from his letter. I believe that he referred to an 1899 Act that applied to urban commons. However, in those days it was considered a mild march to travel five miles up the road to gain access to a common. Nowadays people are mobile, and those who are lucky enough to be able to do so can gain access to areas of the country they would never have dreamt of visiting in the past. We should introduce legislation that is relevant for today and for the future, rather than thinking about the past. I am slightly disappointed that on this occasion the noble Lord did not even try to meet us halfway.
Disabled access was mentioned. We shall debate that matter on the NERC Bill. I refer to the issue of 4x4s in connection with that Bill.
Clearly, there are disabled people who need to have access to be able to enjoy some parts of the countryside that they would not otherwise be able to enjoy; so there is a longer-term question.
As I said earlier, the original Act was based on urban commons, and it was intended to make a far greater area of the land available to people as time went by. It is not relevant to us today. It is with a very heavy heart that I say to the Minister that he has not answered us. If we are not lucky enough tonight to win the Division, which I feel I must call, I hope that between now and when the Bill passes through another place the Government will give greater consideration to what I think is the crux of the Bill. I am disappointed with the noble Lord's response, and I beg leave to take the opinion of the House.
My Lords, we come to a group in which there are a number of government amendments and two opposition amendments, Amendments Nos. 50 and 52. If it is agreeable to the House, I will speak to the government amendments at this stage and come back on the other amendments, which are important.
Government Amendments Nos. 49 and 81 are made at the request of the authorities in the New Forest. Controls on certain limited works in the Forest are contained in local legislation. As these works are dealt with in local Acts, they will be exempt from the requirement for consent under Section 194. However, for any works in the New Forest that are not permitted by local Acts, Section 194 applies at present as for any other land, subject to rights of common. The controls in Clause 38 apply only to registered common land and to certain land exempt from registration. As originally drafted, therefore, Clause 38 would not apply in the New Forest. Although we were initially led to believe that the authorities in the New Forest were content with that, after further consideration the Verderers of the New Forest have asked that the safety net provided by Section 194 should be reinstated by applying Clause 38 to the Forest in the same way. Amendment No. 49 does that, and Amendment No. 81 ensures that the controls apply to National Trust land in the New Forest.
I shall deal with government Amendments Nos. 51 and 82 next. At the request of the Quarry Products Association, we propose to extend slightly the exemption from the requirement for consent to mineral workings that have planning permission at the time that the Bill becomes law. Amendment No. 82 provides that the exemption will also apply where an existing permission is varied by an extension of the time limit to which the permission is subject. Because it is a transitional measure, we have also moved it into Schedule 3. That necessitates the removal of Clause 38(6)(e), which is achieved via Amendment No. 51.
In agreeing to that change, we have not resiled from the basic principle that new minerals workings that prevent or impede access on common land should in future require the consent of the national authority under Clause 38. But we recognise that there may be circumstances in which the time for the completion of works relating to an existing planning permission may be varied, and we accept that imposing the need for an additional consent at that point would not be appropriate. We also believe it is in the interests of common land that such existing permissions, which I understand often contain provisions for the restoration of the land, should be able to be completed where the change relates solely to the time taken for completion of the development.
Government Amendments Nos. 53 and 54 are technical amendments to Clause 38(8) to ensure that paragraph (b) does not exempt works from the controls in a way that was not intended. The amendments ensure that the exemption under Clause 38(6)(b) applies only where the enactment referred to applies generally to common land, and not to a specific common. It ensures there is no overlap or confusion with the exemption in Clause 38(6)(a), which applies to specific commons.
Government Amendment No. 73 is a consequential amendment to make Clause 51 consistent with Clause 38. I beg to move.
My Lords, I shall speak to our two amendments grouped with Amendment No. 49. Our Amendment No. 50 is mainly a probing amendment, in that it deals with electronic communication apparatus. The Minister clarified that such apparatus,
"for the purposes of an electronic communications code network", means basically a phone mast. There is a great deal of opposition to such things, especially in areas of natural beauty. Does the exemption from the requirement to obtain national authority permission to build them on common land mean that they can circumvent the planning system?
On our Amendment No. 52, we are back on the question of quarrying. The methods used in quarrying differ according to conditions, quantities and so on. The controls on noise and nuisance also vary from place to place and time to time. Some of our common land is very beautiful and attracts tourists, holidaymakers and others whose spending is important to the rural community. Where extraction has not begun, the national authority—if it is even-handed—should wish to ensure that the methods are appropriate to the location. Obviously if a site is well under way and the operating conditions are understood by all, there is no imperative to start changing things and probably bump up the cost. However, if the work has commenced in only the past few months or not yet at all, the national authority should be able to call the plans in.
I shall deal with the government amendments. It is interesting to hear what the noble Lord has to say on the exercise of powers in the New Forest; we are all very much in awe of the venerable association of Verderers of the New Forest and its ways. This is the only point at which the Bill will affect the New Forest. As the association has not written to the rest of us with complaints, I presume that the Government have got it just about the way that the association wants it. There was a bit of a belt-and-braces situation in government Amendment No. 55, and it is a little difficult to see anyone arguing that it would affect the requirement to get other people's consent. The meaning is perfectly plain when "arising" is removed.
My Lords, we look on many of the amendments as extremely helpful. I agree with the noble Duke about the verderers. Clearly the Minister is well informed; we too assume that correct decisions have been made so far as the clause is concerned.
Amendment No. 50 addresses the vexed question of installations of electronic communications for the purposes of an electronic code network. That is problematic, and it would be interesting to hear the Minister's views on whether the amendment is the right way to go about it. So far as I am concerned, the jury is out on the matter, and we want to listen to more contributions.
Government Amendments Nos. 51 and 52, which concern minerals, seem very reasonable. After "apply", government Amendment No. 53 inserts "(generally)". Why? What other land are the Government thinking of in that context? The other amendments make sense as well, so I do not want to prolong the proceedings of the House. This raft of amendments is quite constructive.
My Lords, I have one or two questions about government Amendments Nos. 51 and 82. I do not understand why this matter is being moved from one bit of the Bill to another, but I do not suppose that it has great significance. If it has, perhaps the Minister can tell us.
The prohibition on mineral works currently set out in Clause 38 has been changed only in one respect as far as I can see. Paragraph (a) in Amendment No. 82 is no different; and I do not think that paragraph (b) is different given that the period allowed for the works to be carried out is part of the planning permission. I think that that would be covered by the part of Clause 38 that the Government wish to remove and replace by their amendments. So the only difference seems to be the words,
"subject to any extension of time granted before or after the commencement of that section".
I can understand why the works might be subject to an extension of time granted before the commencement of that provision since that, rightly or wrongly, will be part of the existing planning permission. What is really being said is that if after the Bill has been enacted there is existing planning permission for mineral working on a common and the developer, owner or whoever applies for an extension of the time granted within which those works should be carried out, that would still not require planning permission. It does not seem obvious why that should be the case. As any new permissions for mineral extraction will require specific permission from Natural England, it is not clear why an extension of time for an existing permission should not be subject to similar permission. As I understand it, given that the planning permission cannot be carried out unless that extension of time is granted, and an application for that will have to be made, it will be subject to all the normal planning procedures.
I have read the Bill without any specific examples in mind of commons where that might apply, and it may well be that in the real world it will not make any difference either way. However, I can see circumstances in which mineral workings on a common might be extremely controversial and harmful to that common, yet permission might have already been granted, perhaps in the distant past, for that to be extended. Will the Minister explain why such circumstances should not be caught by these provisions?
My Lords, I am grateful to noble Lords who have spoken. Perhaps I may deal first with Amendment No. 50, which I know is a probing amendment. We believe that it is appropriate to maintain the exemption and I shall try to explain why. We must focus on what the controls on works are intended to achieve. Clause 38 is concerned with works that prevent or impede access to the common and which, as a consequence, might adversely affect the common and the purpose for which the land is used. Clause 38 is not a means of introducing a consent requirement for works which some may consider anti-social or inappropriate. If the existing consent regime for such works is considered to be deficient, that does not mean that it would be appropriate to introduce controls via Clause 38, which apply to a relatively small proportion of the land in the country. About 4 per cent of the land surface of England and Wales is made up of common land, and so these controls would not apply to 96 per cent of the land and would not offer protection from any dangers that there might be.
The exemption is sensible to deal with the frequent need to erect telephone lines, junction boxes and the like on common land to provide a service to neighbouring properties. We know that the exemption is longstanding; it has existed in respect of communications equipment for over 80 years and we are not aware of evidence that any problems on commons have arisen as a result. It is consistent with our aim and, I suspect, the aim of the House to help create the most dynamic and competitive communications industry in the world which ensures universal access to a choice of diverse services of the highest quality and that citizens and consumers are protected. That objective needs to be balanced in an appropriate manner with others, such as limiting environmental impact and addressing public concern over new developments. However, our judgment is that controls within the planning system are the best way of achieving that.
The noble Duke asked, pertinently, whether these matters were covered by planning law, too. The answer is that in certain circumstances—relating to phone masts, for example—consent under Clause 38 would not circumvent the need for planning controls. Consent would be needed under both, if appropriate. So the planning laws do not go out of the window automatically just because the works are covered by this Bill.
The noble Lord, Lord Greaves, has put me on my mettle regarding government Amendment No. 51. He asked why this matter is being moved to Schedule 3. The answer is, "Because it is absolutely a transitional amendment". The time for it would run out after a period and so the appropriate place for it in the Bill is in Schedule 3. The noble Lord will know that planning permission needs to be extended by time to allow completion of works. The justification for Amendment No. 51 is that it is only an extension of time; it will not allow extended planning permissions for any other purposes—for example, if the area covered by the works is also extended. The amendment would also enable existing permissions to be completed, and often the restoration of the land would be part of that process. So this is a tidying-up exercise in the sense that there is already an exemption from the requirement for consent to mineral workings which have planning permission at the time that the Bill becomes law. Amendment 51 has the effect of extending that slightly when existing permission is varied by extension of the time limit to which the permission is subject. We think that that is a fair way to proceed in this instance.
moved Amendment No. 51:
Page 22, line 19, leave out paragraph (e).
On Question, amendment agreed to.
[Amendment No. 52 not moved.]
moved Amendments Nos. 53 and 54:
Page 22, line 30, after "apply" insert "(generally)"
Page 22, line 33, leave out "a" and insert "any"
On Question, amendments agreed to.
My Lords, I have two amendments in this group. Although I did not object to the Government removing the little word "arising", I did smile a little. I thought that if the little word "arising" could be taken out, perhaps the little word "material" could be put in elsewhere, but that is another matter.
I shall speak to Amendments Nos. 56 and 57. Amendment No. 56 is a probing amendment designed to discover whether the Government intend that this retrospective consent will apply only to works—
My Lords, I am so sorry to interrupt the noble Baroness but we thought that Amendment No. 55 had been degrouped from Amendments Nos. 56 and 57. I think that the noble Baroness will be able to move her amendments very shortly.
My goodness, I am too keen, my Lords. I apologise; I was working from a previous groupings list and that is my fault. In moving Amendment No. 56, I shall speak also to Amendment No. 57, which is grouped with it.
As I said, this is a probing amendment designed to discover whether the Government intend that this retrospective consent will apply only to works that have been commenced or completed by now. As I read it, the wording in the Bill does not make that clear and could be construed as meaning that anyone may, at any time in the future, begin restricted works and then apply for consent. I am sure that that is not what is intended but I am seeking clarification. A cut-off date of
Amendment No. 57 would insert an additional provision intended to prevent application to the court by members of the public in respect of works carried out before the Bill was laid. It seems to us particularly unfair for retrospective effect to be granted at the behest of anyone who is offended. However, the amendment would widen the power of particular authorities to bring proceedings by including all "relevant authorities" and not just the local authorities described in Section 194 of the Law of Property Act 1925. I beg to move.
My Lords, I support my noble friend's amendments—particularly Amendment No. 57. My noble friend talked about retrospective cases that might be brought by the relevant authorities. Of course, that could be extended to the present. It is now extended to include the general public, and we go back to the whole question of vexatious legislation. I certainly do not wish to go through that again, but I suggest to your Lordships that if anything seriously untoward had taken place before the date mentioned in my noble friend's amendment—that is, June 2005—surely the relevant authorities would already have had the opportunity to take action. In Committee, when we debated the possibility of reopening the whole question of registers, the Minister said, "Let sleeping dogs lie". I suggest to the Minister that perhaps he might take a similar approach in this instance.
I feel strongly that every effort should be made to reduce conflict between the access providers and the access users, as my noble friend said when she spoke to other amendments. I think that this would be a small but important example where that concept could be implemented and so I very much hope that the Minister can take a magnanimous view in this case.
My Lords, Amendment No. 56 would remove the provisions that enable a national authority to consider an application for consent to undertake works under Clause 38 in circumstances where the works have been started or completed. The noble Duke, the Duke of Montrose, tabled an equivalent amendment in Committee. I gave an explanation then as to why we did not think it appropriate. That obviously did not satisfy him and his colleagues and I hope that I can do a little better this time.
In our view, when works have been undertaken without the consent of the national authority under Clause 38, a sensible first step is to enable an application for such consent to be made. If no such application is submitted or if consent is refused, enforcement action can follow. This is not a transitional provision. Works undertaken while Section 194 was still in force could be the subject of an application under Clause 38 and that would then make them lawful.
I should add that this provision does not take away any power that a landowner has to seek the removal of works undertaken without his consent, or any power that commoners have to seek the removal of works that adversely affect the exercise of their rights. The ability to consider a retrospective application relates only to the provisions of Clause 38.
My officials currently accept applications in respect of works already started or completed, and I do not believe that that has caused any problems; nor am I aware that a specific power to accept a retrospective application is required but, to put the matter beyond doubt, we have included one in the Bill. I hope that that explains more clearly why we have taken the attitude that we have.
I hope that the noble Baroness will be pleased with my attitude to her Amendment No. 57, which relates to the provisions in the Bill that amend Section 194 so that after the commencement of this Act any person would be able to take enforcement action against unlawful works undertaken while Section 194 was in force.
We understand the point that the noble Baroness is making. We do not think that the enforcement provisions that we propose, and in particular the amendment to Section 194, is a retrospective provision in the true sense of the phrase, but we understand her concern. We are perhaps slightly moving the goalposts in respect of unlawful works undertaken before the Bill comes into force. Because of the way in which the noble Baroness and the noble Earl, Lord Peel, made their point, I am prepared to take this matter away for further consideration to see whether it is possible to come up with a suitable government amendment at Third Reading, but I make no promises.
My Lords, I am very grateful to the Minister—in particular, for his response to our Amendment No. 57. I thought that we had slightly persuaded him of our case in Committee, but no government amendments have been forthcoming and so we have returned to the issue. I am extremely grateful to him for agreeing to look at the matter again, although he is making no promises.
Perhaps I may clarify his response to my Amendment No. 56. I am unsure about it and want to be certain. Is he saying that the provision applies in the past, present and future? From the wording in the Bill, which can be interpreted in any way, it is difficult to know whether that is the case and the Minister did not respond on that point. Do I gather from his nod that that is so?
My Lords, it applies in the past, present and future.
moved Amendment No. 57A:
Page 24, line 12, at end insert—
"( ) The appropriate national authority shall issue guidance to local authorities on the exercise of their powers to take action against unauthorised works on common land.
( ) Natural England and the Countryside Council for Wales shall from time to time report to the appropriate national authority on the operation and effectiveness of the powers to prevent unauthorised works on common land."
My Lords, Amendment No. 57A is the first amendment in this group. In case the noble Baroness and others are still working from old groupings lists, I had better make clear what is in this group. It starts with Amendment No. 57A, which I am moving, and includes Amendments Nos. 61A, 61B, 61C and 61D, which refer to a slightly later clause—Clause 45.
I have tabled this amendment in order to respond as best as I can to what the Minister said in Grand Committee in reply to a series of rather different amendments which I moved at that time. I have tried to set out in my amendments what I understand the Minister said was the Government's intention regarding how the system would work in the future. At the same time, I have tried to strengthen slightly the provisions relating to local authorities taking action over unauthorised works on common land—unauthorised encroachment—and I have attempted to tackle the problem, which we discussed at some length in Grand Committee, of the failure of local authorities to take this area of work seriously over a long period of time. There is a general feeling that this is not an area of work in which local authorities are interested and they do not exercise their powers in this area very effectively.
When this was discussed in Grand Committee, the Minister said that the Bill, particularly what is now Clause 45, sets out the powers of local authorities more clearly. I believe the noble Baroness responded to this point in Committee. The proposition put forward on behalf of the Government was that by setting out the powers of local authorities more clearly and making it easier for everyone to understand what their powers are in that respect, it is likely that they will make more use of those powers. That seems to me to be a sensible argument and one that will probably go some way towards what we all want, which is for local authorities to take their powers seriously on serious and important encroachment on commons. However, I do not believe it goes far enough. It would be useful to set further things out in the Bill.
Amendment No. 57A is probably not in the right place in the Bill—it may not matter too much at this stage. I believe it would be better put with Clause 45. The bones of the amendment are that:
"The appropriate national authority shall issue guidance to local authorities on the exercise of their powers to take action against unauthorised works on common land".
The Minister, when replying to a different amendment in Grand Committee, said that it was the intention of the Government to issue such guidance, and that that would be done in the future, although it had not been done for many years, and that that would assist local authorities in their work. That is very true. I suggest that it would be very helpful if the need for that guidance and the requirement on the Government to issue guidance could be put on the face of the Bill. At col. GC 276, the noble Baroness, Lady Farrington, said:
"We will also wish to provide guidance to local authorities on the undertaking of their functions under this Bill and that will certainly include advice about the use of their powers under Clause 43".
That clause is now Clause 45.
"I am not aware that such advice has been provided in recent years and I hope that that will provide some reassurance to the noble Lord".—[Official Report, 14/11/05; col. GC 276.]
I am partly reassured, but I am never fully reassured by Ministers who try to tell us what future governments will do or what their own government will do next year. The legislative procedures in this House and in the House of Commons are full of occasions when Ministers tell us that they intend to do something but they do not get around to it, perhaps because Ministers and circumstances change. I believe that there is great value in putting this on the face of the Bill.
The second part of Amendment No. 57A is a useful addition, although not one for which I would die in a ditch. Natural England and the Countryside Council for Wales shall provide appropriate advice to the Secretary of State on the operation and effectiveness of the powers to prevent unauthorised works from time to time. I believe that that would be helpful. However, it is not crucial to what I am proposing.
The rest of the amendments set out how local authorities would deal with complaints which I believe is crucial. In Grand Committee, I proposed that local authorities should have a duty to take action against all encroachment and it was suggested to me that that was inflexible, did not provide them with the opportunity to solve problems in other ways and, in particular, it meant that trivial complaints, if they were technically encroachments, would have to be acted upon. We discussed what might be minor encroachments such as erecting a sign saying "This is a common". I accept what the Government said on that. It was very sensible. It should not be a duty. However, it is sensible to set out on the face of the Bill more clearly the way in which local authorities should carry out their powers and should actively pursue the procedures. I accept what the Government said in Grand Committee and this amendment is my attempt to put on the face of the Bill what they said.
The slightly complex amendments, Amendments Nos. 61A to 61D, if adopted, would have the following effect. Amendment No. 61B says that a local authority,
"shall consider any report that it receives of unlawful interference in common land or a town or village green to which this section applies".
Secondly, they may take any reasonable steps to protect the land against unlawful interference that could be taken by an owner in possession of the land. They have to consider it, but they will then exercise their proper judgment on whether to take action and on what action to take. Thirdly, they may institute proceedings, as already set out in Clause 45(2)(b). That adds clarity to the Bill and it would be an instruction to local authorities on how to act if they receive a complaint. It will provide them with all the flexibility that the noble Baroness said, quite rightly, they needed.
My final point is that in Committee I suggested that the commons registration authorities should have that duty. The noble Baroness quite rightly pointed out to me that all local authorities have that power to take action and, therefore, the amendment that I am moving today refers to all local authorities and not simply to commons registration authorities. I am agreeing with what the Government told me in Grand Committee and asking them to set it out more clearly in the Bill so that local authorities have greater motivation and greater understanding of what they have to do. To do that under Amendment No. 57A, the Government will be under an obligation to provide them with appropriate guidance. That seems to me to be an entirely reasonable amendment and I look forward to the Minister's response.
My Lords, the noble Lord, Lord Greaves, is certainly bolder than we have been in trying to interpret what the Minister said in Committee in legislative form. We are dealing with the enforcement of consent to works and works that have been done without consent. Of course, the consent has to be given by the appropriate national authority. Clause 41 says,
"any person may apply to the county court in whose area the land is situated".
Presumably, that is the first route about which the Government were talking. Perhaps the noble Lord, Lord Greaves, through his amendment, was trying to emphasise that it concerns encroachment, but encroachment would almost certainly tend to include works of some kind. I wonder whether that is caught in the earlier phraseology in the Bill. Perhaps he is considering whether we can put some compulsion on the local authority to be the body that takes the objection.
My Lords, we agree with the amendments tabled by the noble Lord, Lord Greaves. They display his long experience in local government. To put these amendments on the face of the Bill would improve the Bill no end because they specify to local authorities precisely what their responsibilities are in this respect.
My Lords, perhaps I can begin by endorsing the tribute made by the noble Lord, Lord Livsey, to the long experience of the noble Lord, Lord Greaves, in local government. I declare an interest: we were both on Lancashire County Council for 20 years. We are not unused to having the odd friendly difference of opinion from time to time and agreeing at other times.
I understand the concern of the noble Lord, Lord Greaves, that Ministers may come and go and that sometimes he fears that matters may not be followed up. Inevitably, there will need to be guidance circulated to local authorities on the Bill. So much in it affects the duties and powers of local authorities that we could not avoid giving guidance. I hope that that reassures the noble Lord.
We envisage issuing a circular to local authorities about the implementation of the Bill. We agree that including guidance on the extent and use of their powers would be valuable and sensible and ensure that local authorities are encouraged to take their enforcement powers seriously. However, we do not consider it necessary or appropriate for a requirement for this to be prescribed in the Bill. It is essentially an administrative matter and Ministers have long adopted the convention of giving advice to local authorities in circulars. I am sure the noble Lord will agree that we have received many of these over the years. We are less convinced by the suggestion that Natural England and the Countryside Council for Wales should be required to report to the national authority on the operation and effectiveness of the enforcement regime.
I note that the noble Lord, Lord Greaves, said that he was not prepared to die in the ditch for this part of his amendment. It could involve those bodies in a considerable amount of work, carrying out surveys of commons to identify potential problems. The enforcing role, which will in future be open to any person, should be sufficient to provide an appropriate level of protection against unlawful works at local level. If Natural England wishes to provide reports, Clause 3 of the Natural Environment and Rural Communities Bill would give Natural England powers to carry out research that supports its general purpose. Similar powers are available to the Countryside Council in Wales, so both bodies may in any case provide such reports as they think fit.
On Amendments Nos. 61A to 61D, it will not surprise the noble Lord if I say that they do not strike quite the note we want in this part of the Bill. There are distinct elements to these amendments. The first would strengthen the requirement on all authorities to take enforcement action. The second would enhance the powers of management. On Amendment No. 61A, we do not see a duty on local authorities to enforce as desirable or appropriate and I am pleased that he recognised that. However, I draw his attention to the enforcement powers of local planning authorities. If they consider that unauthorised development is unacceptable on planning grounds, they have the power to take action but not a duty.
As with planning enforcement, if the authority receives a complaint about encroachment on common land, the authority must consider that complaint. If the authority unreasonably fails to act—Amendment No. 61C focuses on what is reasonable—that matter can be taken up with the local authority's members or, ultimately, can be considered by the local ombudsman. Just as we do not believe that there should be a duty on planning authorities, we do not think it is reasonable to require local authorities to act against encroachments. That would be an unwarranted fetter on their discretion to act as they think fit and to determine their own local priorities.
However, I accept the noble Lord's concern that conferring a power does not go far enough. That is why we have agreed to look at whether local access forums should be given guidance and further powers to offer advice on these matters to any local authority where an encroachment restricts public access. I would also remind the noble Lord that many local authorities are already under a duty to enforce against encroachments on common land where they have voluntarily entered into a scheme of management under the Commons Act 1899. The noble Lord may be pleased to know that there are more than 200 such schemes, most frequently relating to lowland commons, and in such cases the local authority has opted in to having a duty to enforce. We believe that that is the appropriate way.
The noble Duke asked whether encroachment is the same as works. Not necessarily; encroachment is often just extending a private garden on to a common and does not necessarily involve works. If it does involve works which prevent or impede access, it would be caught by the controls.
I hope that I have reassured the noble Lord, Lord Greaves, and that he feels able to withdraw his amendment.
My Lords, before the noble Baroness sits down, I heard her say that if a local authority receives a complaint about unlawful encroachment it is under a duty to consider that. I heard her say that and I was trying to put it into the Bill with Amendment No. 61B. Will she assure me that that is the case and, if so, how and where?
My Lords, I am interested in that reply. I assume the Minister is saying that the local authority must take account of any complaint it receives about anything connected with any of its powers. That is nothing to do with commons legislation but involves the general powers and running of local authorities. The Minister is nodding in response to that, which is helpful. No doubt she will therefore say that my Amendment No. 61B is not needed.
I was grateful to the Minister for much of what she said. She emphasised that there will be guidance and that local authorities, commons registration authorities and others will clearly be encouraged by the Government to take seriously their responsibilities under the new Act. I would prefer that their responsibilities were more clearly set out in the Bill and believe that enforcement against unlawful encroachment will remain with the Bill when it goes to the House of Commons. While we may rightly think that we have done a good job on the Bill, which arrived here first, there are unresolved issues. The unlawful interference on common land and the enforcement of acting against that will stay with the Bill beyond this House.
I am grateful for the Minister's response and I am sorry that she cannot accept the spirit of the amendments. I beg leave to withdraw the amendment.
moved Amendment No. 58:
Page 24, line 37, leave out from second "to" to end of line 6 on page 25 and insert—
"(a) the carrying out by a specified person of specified works on specified land; or
(b) the carrying out by a specified person, or a person of a specified description, of works of a specified description on
(i) any land, or
(ii) land of a specified description.
(2) The appropriate national authority may only make an order under subsection (1)(a) if it is satisfied that the works specified in the order are necessary or expedient for any of the purposes in subsection (4).
(3) The appropriate national authority may only make an order under subsection (1)(b) if it is satisfied that works of the description specified in the order are likely to be necessary or expedient on any land, or on land of the description specified in the order, for any of the purposes in subsection (4).
(4) The purposes referred to in subsections (2) and (3) are—
(a) use of land by members of the public for the purposes of open-air recreation pursuant to any right of access;
(b) the exercise of rights of common;
(c) nature conservation;
(d) the protection of archaeological remains or features of historic interest;
(e) the use of the land for sporting or recreational purposes.
(5) Where any land is the subject of a resolution under section 194(3)(b) of the Law of Property Act 1925 (c. 20) immediately before the commencement of this section, the appropriate national authority may by order provide that section 38 is not to apply to the carrying out of works, or works of a description specified in the order, on that land.
(6) An order under subsection (1) or (5) may provide that section 38 is not to apply only if the works to which the order relates are carried out in accordance with the terms of the order.
(7) In subsection (1) "specified" means specified in an order under that subsection."
My Lords, the Government's Amendment No. 58 builds on provisions set out in Clause 43, which enables the national authority to exempt by order certain works from the requirement to obtain consent under Clause 38. As drafted, an order could be made only where the works are for one of the purposes listed in Clause 43(3).
I have considered the argument put forward in Grand Committee that a list of purposes is too limited and agree that it should be expanded. The proposed amendment therefore extends the list to include works needed for three additional purposes: sport or recreation, nature conservation and the protection of historic monuments. We do not envisage that the provision would be used casually, but we believe that the clause brings an important and appropriate level of flexibility to the provisions and that the list of purposes now achieves the right balance of interest.
The intention remains that exemptions would apply only to works which would not have a significant impact on the common. They are intended to enable landowners and others to carry out works for certain purposes which prevent or impede access to a common, but where the works involved are not so significant as to warrant an application to the national authority for consent.
As under the previous draft, the exemption will be made only if the national authority is satisfied that the works are necessary and expedient for one of the listed purposes. There are two other amendments in the group, so I shall sit down now to allow other noble Lords to speak to them. I beg to move.
My Lords, for the promotion of animal welfare it is important to be able to undertake works without consent when animals are suffering or would suffer if the works were not carried out. This is an essential insertion in the Bill. In it, we are supported by the National Farmers' Union. There need to be facilities for routine tasks that are necessary to maintain the good health of the animals. There may also be animal health emergencies, such as foot and mouth disease, when it may be right to act rapidly to prevent the spread of the disease. We have seen examples of that in recent times. The words in the amendment are the words used in the Animal Health Act, and, if they are appropriate there, they are surely appropriate here.
When reading Amendment No. 58 for the first time, I thought that it seemed extremely long and complicated, but, after reading it thoroughly, I see that it has important aspects that give clear guidance. In particular, it is good to see the definition of purposes repeated in subsection (4) of the amendment. It refers to the use of land, the exercise of rights of common, nature conservation and so on. Amendment No. 58 is extremely helpful. I beg to move.
My Lords, Amendment No. 60, which I tabled, is grouped with these amendments, so I shall speak to it now. I am aware that it becomes obsolete if the government amendment is agreed to. I hope that that amendment will be agreed to, because it is a good amendment. I am grateful to the Minister for including in it the additions that we discussed in Committee.
Amendment No. 58 goes a significant way towards dealing with the points raised. It gives the Government power to carry out their stated objective of making orders so that the need for consent for minor management works on common land is removed. In view of our recent result on Amendment No. 46, this amendment takes on greater importance. I hope that it will prove to be a significant means of ensuring that sensible management activities, which noble Lords have already discussed, are allowed to continue, thus removing much of the doubt about what constitutes an impediment to access. It will also alleviate the need for land managers to seek consent for a management activity. We know from experience that that can be a lengthy and expensive operation.
Despite its admirable intentions, the weakness of Amendment No. 58 is that there is nothing in the Bill that suggests that such an order will be made. I appreciate that it would be impractical to try to lay down precisely what should be included in such an order, since the purposes in subsection (4) are extremely wide, as they should be, but it seems reasonable to ask the Minister to consider putting a time limit on the issuing of such an order because, apart from anything else, it would test whether the Minister believes that such an order will be used at all and how effectively. I think he said that it would not be used "casually". I understand that, but I hope that it will be used, and used effectively, so that a clear message can be put forward to deal with the contentious points that we have been discussing. Amendment No. 60 is a probing amendment, but I hope the Minister will assure us that this clause will deal with the problems that we have identified.
My Lords, we welcome the amendments to Clause 43. In Committee, we requested that more purposes be added to the specified set, and we are pleased to see that the protection of heritage has been listed as a priority on the face of the Bill. We also raised the question of animal welfare and, to that extent, we wish to support the amendment moved by the noble Lord, Lord Livsey. However, I understand that the problem is that to protect animals fences would have to be erected, which does not always tally with the Government's planned treatment of common land. Will the Minister answer that point when he replies?
The phrase "any land" in sub-paragraph (b)(i) caught my attention. It seems to be rather woolly. Surely "any land" includes "land of a specified description", used in sub-paragraph (b)(ii). Can the Minister explain why two sub-paragraphs are needed?
The noble Earl, Lord Peel, spoke to his amendment, which would oblige the national authority to make an order within 12 months. Although the new clause inserted in Committee is an improvement and gives power to the Government to carry out their stated objectives of making orders so that minor works and management works are taken out of the need for consent, there is, as the noble Earl suggested, no obligation on the Government to make regulations, nor is there any definition of what should go in them. Provision for the national authority to be obliged to make an order is intended to press that point, although there is no provision about what needs to be in the order. The object is to make the point, rather than to succeed.
My Lords, I support Amendment No. 59, which was moved by my noble friend Lord Livsey of Talgarth. In the other place, I had Front-Bench responsibility for agriculture during the BSE and the foot and mouth crises, and I wish to draw attention to the need for speedy action in some circumstances. It would not be possible under the cumbersome regulations that would otherwise be necessary. In that context, it is an extraordinary lacuna that we do not have specific reference to animal welfare in the clause as amended by Amendment No. 58.
The Minister said that the previous list of purposes was too limited. It is still too limited. Subsection (4) is not illustrative; it is exclusive and exhaustive. It states:
"The purposes referred to subsections (2) and (3) are".
They do not illustrate what the circumstances might be. They are very precise, and the exclusion of any reference to the promotion of animal welfare is a grave weakness in the Bill. The Minister may say that the amendment is not precise enough or that it will not deal with the problem with which I am concerned, and with which I am sure the farming community will be concerned, but I plead with him to think carefully, either at the next stage in this House or when the Bill goes to the other place, about the fact that the clause as it stands does not give an exemption power in special, emergency circumstances.
My Lords, my only fear in replying is that the noble Lord, Lord Tyler, will think that I am picking on him. I promise him that I am not. However, I shall try to argue successfully that Amendment No. 59, although very attractive—who can resist the call for animal welfare?—is inappropriate in this instance.
I have already spoken to Amendment No. 58, and I am grateful to noble Lords around the House for their support on that. Let me see what I can do on Amendment No 59. It adds the expression,
"the promotion of animal welfare" to the list of purposes for which an exemption may be issued. I have listened carefully to the points that have been made and the same points that were made by the noble Baroness in Committee. My concern about adding animal welfare to the list of purposes in Clause 43 is essentially as was explained in the letter to noble Lords following Grand Committee. The examples that I have been given for why certain works may be needed for the protection of animal welfare are not consistent with the reasons why we might issue an exemption from the controls on works. It seems to us that channelling animals away from recreational hotspots or keeping them from straying onto roads would require permanent works. Furthermore, such works could have a significant effect on the open and unenclosed nature of our commons in places where people congregate to enjoy the common, either on foot or in a vehicle. I ask the House: can we imagine the difference that it would make driving across Dartmoor, for example, with fences on either side of the road?
My Lords, the Minister may know that most of the highways across Dartmoor are already fenced to prevent accidents. So I am afraid that the example is not a good one. While I am on my feet, can I ask him specifically to think about the situation in 30 or 40 years' time when some new animal disease epidemic erupts where it is absolutely necessary? We are not going to want to re-visit the whole Bill.
He is, my Lords, but he obviously knows Dartmoor better than I do—and I will be asking why that Dartmoor example was given.
Perhaps I may return to what is a serious debate. Permanent works of this scale and significance must be subject to the consent regime. Otherwise, there would be no purpose in having the regime. I do not rule out entirely the possibility that fences might be necessary in those or other similar circumstances, but the works would then be subject to the consent regime in Clause 38. The procedures will ensure that proposals are carefully scrutinised and that the public generally have a chance to make their views known and have them taken into account. If at the end of that process the national authority decides that a fence is necessary, I am sure that there would be widespread acceptance of that decision, but I cannot say that we are convinced that everyone would accept that works of that nature should be exempt from the controls, which is what is being sought, without the widest possible consultation.
Both noble Lords on the Liberal Democrat Benches mentioned emergencies. In emergencies, such as foot and mouth disease, there are already powers in the Animal Health Act that allow works to be undertaken. The exemptions that we have inserted in Clause 43 are for minor or temporary works, not works of such significance that they should be subject to the controls on works in Clause 38, which, as I understand it, have the general support of noble Lords. Exemptions are not a substitute for a fast-track procedure for emergency works because such exemptions are made by order.
I am invited to come back to the noble Lord, Lord Tyler, on the Dartmoor point. I am not sure whether I shall resist the temptation, but I am advised that most roads across Dartmoor commons are not fenced. The fenced sections tend to be across new—I cannot read them.
My Lords, perhaps I may give the noble Lord an opportunity to look again at his notes by intervening briefly to say that I chose my words carefully. Not all the highways across Dartmoor are fenced, but the major roads, particularly those in the vicinity of the outskirts of Plymouth, are and have been for many years. I know, as I used to be vice-chair of the Dartmoor National Park Committee.
My Lords, I have now had translated the word that I was looking at. The fenced sections tend to be across what is described as newtakes, also in-bye land and inclosures, which are not common land. I think that the noble Lord and I, who agree on so much, will have to disagree on this.
My Lords, I was hoping that the noble Lord would do that. I have made our point on why we do not think that making what, on the face of it, sounds like an attractive addition to the clause is appropriate. I repeat: emergencies can be dealt with under existing legislation, and, of course, would be dealt with under emergency legislation.
Amendment No. 60, I understand, is a probing amendment. I shall try to explain where we come from on it. The intention is to find out when the Government intend to make orders specifying certain exemptions from the controls. We do not envisage that just one order would be made. A number of them could be made as and when the national authority considered it appropriate to do so. My letter tried to explain to noble Lords that we saw the system as a flexible one, allowing the national authority to decide at any time to make an order. What may prompt the making of such an order might be the result of work undertaken by the national authority itself, or it could happen as a result of a request from another body. We see the system helping to ensure that the consent regime effectively protects the open and unenclosed nature of common land, without imposing unnecessary or unwarranted burdens on anyone.
Although I have to emphasise that the decision to issue an order is discretionary, I can give a reassurance that our intention is to make such orders specifying exemptions where it is appropriate. We envisage taking forward the question of exemptions at the same time as the implementation of Part 3 generally. That process will involve consultation with interested parties. There will be an opportunity at that stage for people to comment on our proposals and to put forward suggestions of their own. That is as far as I can go tonight in dealing with the amendment.
My Lords, I have finished what I wanted to say about Amendment No. 59.
My Lords, we will read carefully what the Minister said about our amendment on animal welfare. It seems to us that there are situations in which this should apply. It is a question of interpretation whether provisions in the Bill are adequate for—perhaps we should say—smaller activities, where for humane purposes it is necessary to bring animals into a space that has capacity for them to be examined and treated, if necessary by a vet. Indeed, it may be a question of life and death for the animal. So we shall read carefully what the Minister has said. We may look at this again and have discussions with our colleagues in another place about it. In the mean time, I beg leave to withdraw the amendment:
My Lords, Amendment No. 61 provides that the powers in Clause 44, which allow a national authority to amend by order local or personal Acts, can be used only in respect of Acts passed before this Act.
That responds to a concern expressed by the noble Baroness, Lady Byford, in Grand Committee that, otherwise, that power could be used to amend Acts passed in future. That would clearly be inappropriate. Amendments Nos. 72 and 74 make similar changes to other provisions in Clauses 51 and 52, which give the national authority powers to amend local or personal Acts by order. We hope that the noble Baroness is pleased. We are grateful to her for her assistance. I beg to move.
My Lords, I am grateful to the Minister for the government response to the amendments that we moved in Committee. That was our previous Clause 49 and Amendment No. 244 in Hansard at column GC291. I shall not delay the House any longer but thank the Minister for coming back and responding to the suggestions that we made in Committee.
moved Amendment No. 61E:
Page 25, line 37, at end insert—
"( ) The appropriate national authority shall issue guidance to local authorities on the exercise of their powers to take action over unclaimed land."
My Lords, this is another issue to which we have not really got to the bottom yet and there is no satisfactory solution in the Bill. It concerns unclaimed commons—land that has been registered as common land that has not been claimed by any owners. Some of it may be small pieces of land that have effectively been abandoned; others may be commons that are satisfactorily operated as commons, but no one knows who is the owner. There is a whole range of them with different circumstances and not all of them are in crisis. However, there is a significant number of unclaimed commons out of the 2,000 in England, which amount to 4,000 hectares, and 500 in Wales, which amount to more than 21,000 hectares where there is a significant problem.
We had a long discussion about this in Grand Committee, where I tabled amendments proposing that ownership of unclaimed commons could be transferred to local authorities by various technical means. The Minister was very persuasive in suggesting that that was not the way around the problem and would lead to all sorts of complications—not least a problem with the Human Rights Act 1998. Nevertheless, there is a problem. Many commons are neglected, overgrown and crying out for positive management.
In Grand Committee, the Minister suggested that the main answer to that lay in the powers within the Bill to deal with unlawful incursions on commons, unlawful encroachments of the sort that we were discussing a few groups ago. Where the problem is one of unlawful incursion, of damaging development or works on a common, it can indeed be dealt with in that way. In that sense, the Minister was right. But in many cases, the powers under Clause 45 will be insufficient. In replying to the debate in Grand Committee, the Minister said—and this gets to the nub of the problem:
"We believe that the real problem underlying unclaimed land is not that there is no known owner but that the lack of clarity about ownership can give rise to ineffective management. We therefore concluded that the problem could be tackled by enhancing the powers for management of unclaimed land and, in addition to Clause 43 and schemes of management under the Commons Act 1899, to give commons associations established under Part 2 the power to manage unclaimed commons"—[Official Report, 14/11/05; col. GC 277.]
All that will be extremely helpful, useful and positive, but there will still be commons that are unclaimed, in a mess and that need management that will not be covered by any of those provisions.
If the Government will not accept what I propose in Amendment No. 61F, what do they think could be done? How will those commons be tackled? It is not a question of unauthorised encroachment. There are no management schemes under the 1899 Act and there is no commons association. The problem is one of management. It is highly likely that it is a problem of management of the vegetation—it is overgrown with brambles, gorse or bracken. It might have lots of nasty plants growing on it, such as ragwort, dock and other injurious weeds of that nature. Indeed, it may be causing a problem in the locality because it is invested with Japanese knotweed or other such unpleasant aliens.
What I propose in Amendment No. 61F is that where those conditions apply—where no dissolution is available—the local authority has the power not to take over ownership of the common but to do what the Minister said in Committee ought to happen: to exercise any rights of management of the land. As far as I can see, that is not already in the Bill. Amendment No. 61E merely gives the appropriate national authority instructions to issue guidance to local authorities on the exercise of their powers to take action over unclaimed land. I know exactly what the Minister will say to me in response, because it is what she said to me in response to guidance on action over unauthorised incursions on common land, so I tell her in advance that I accept what she says about that. If she says it again positively here, I shall be delighted. Some of us will be watching and, if the guidance does not appear in a satisfactory form, we will use the appropriate methods to hound the Government until they provide that guidance.
The real question here is, who will manage the vegetation, especially, but also the other aspects of unclaimed commons where there is no owner and where the other available options either do not apply or are inappropriate because there is no unauthorised incursion? I look forward to hearing the Minister's reply to an important question that is so far unanswered. I beg to move.
My Lords, I rise briefly to thank the noble Lord, Lord Greaves, for raising this issue, which we debated in Committee. I have two questions. He is quite right to ask: if those unclaimed commons are left, who has the right to put things in good management order—good working order? He suggests that that should be the local authority. If we then define who it is, my second question is: who will pay?
My Lords, for a moment I thought that we had strayed into an Unstarred Question, when we got into bracken and hogweed. Speaking to Amendment No. 61E, I am happy to give the noble Lord, Lord Greaves, an assurance. We will provide advice to local authorities on the use of their powers under Clause 45 and, indeed, on the use of their powers under the Bill generally, in a circular that we intend to publish as part of the implementation programme following Royal Assent. As I said, and as he recognised, in the context of Amendment No. 57A, we do not need to take any additional powers to do that and we fully intend to do so.
We believe that Amendment No. 61F is unnecessary. Clause 45 already confers on local authorities powers of protection for unclaimed common land. Where something more is required, three options are available. First, the authority may wish to help facilitate the establishment of a commons association to manage the common. If the common has ceased to be agriculturally active, there is no reason why the authority should not be represented on the management committee. Secondly, the authority has powers to create a scheme of management for the common under the Commons Act 1899. Those approaches would confer the sort of management powers which I think the amendment proposed by noble Lord, Lord Greaves, is leading to.
The third option is in response also to the noble Baroness, Lady Byford. The local authority may consider taking the land in hand and managing it as if it were the owner. We believe that some parish councils have taken such an approach with common land and that our solutions for management of unclaimed land are adequate. As I have demonstrated, they provide several means whereby better management may be secured through local authority involvement. We do not feel that it is necessary to strengthen the powers of local authorities .
My Lords, is the Minister saying that local authorities already have the power that I seek to give them in this amendment? If so, within which enactment do they have that power? She said that the third option was that a local authority could simply take over a disused, unkempt and overgrown common and manage it. What power do they currently have so that they can do that?
My Lords, I am grateful for the Minister's comment concerning my intervention. One of the problems at local government level, particularly as regards improvements of rights of way following the CROW Act, is that there is not enough money to enable local authorities to do what they are supposed to do. One of the difficulties is that the more central government pass responsibility down to local authorities, although they are happy to undertake it, the more there has to be financial support to enable them to undertake it.
My Lords, I cannot cite exactly which law and Acts confer those powers. In local government, it is often a chain of Acts. However, some parish councils already take an approach such as this with a view to common land where it was unaware of an owner. Therefore, it has already happened. It is not that we need additional legislation in order for it to happen. I will write on the details of the various Acts which have given local authorities those powers.
My Lords, I wish to clarify the point raised by the noble Baroness, Lady Byford. The Minister said that local authorities have the power. Under Amendment No. 61F in the name of my noble friend Lord Greaves, they would be able to apply for agri-environment schemes presumably to help with resource costs. I assume that the Minister is including that power in her reply.
My Lords, I would need notice of that question because of the issue of ownership of land and when it could be established. I would not feel at all confident in agreeing with the noble Baroness. It is a complex legal area and I would want to take detailed advice on it.
My Lords, it seems to me that before you can enter an agricultural environment scheme you have to have an agricultural holding number and I am not sure that the local authority would have the appropriate number.
They might have, my Lords. A number of them have county farm estates and other landholdings and because of sites of special scientific interest and so on.
My Lords, I was about to comment that we are perhaps fortunate that the Minister is the Minister and not the Whip. But I think that we were all aware of what we were doing and were teasing her a little. I am very interested in what the Minister has said. I shall withdraw Amendment No. 61E and look forward to seeing the advice when it arrives. As regards Amendment No. 61F, I am very clear that the Minister has told the House that this is not necessary because local authorities already have the power that I seek to give them. The Minister is unable to give us absolute chapter and verse because it involves arcane and complex matters that are hidden in local government law. But parish councils do it. I know that parish councils do lots of things. I am not sure that they worry too much about whether what they do is within their powers or not.
Nevertheless, what happens to commons which are not claimed is an important matter. They might be big or small. They might be near the middle of a village where they might be taken over as a town green. Who knows? They might be very remote and out of the way. If we are trying to sort out commons legislation for the next 40 years or whatever and come to a definitive position on who is registered on them, who manages them, how they are looked after and so on, this has to be bottomed properly. I look forward to receiving the Minister's letter. I hope that that will be the end of the matter and that we and our friends elsewhere, including the House of Commons, will be satisfied by it. This is another issue that will go with the Bill to the House of Commons, but it would be very nice to settle it here before we send it. It is complicated, but it is very important. On that basis, I thank the Minister for her comments. I beg leave to withdraw the amendment.
My Lords, Amendment No. 62 responds to the arguments put to us in Grand Committee that the Bill should allow only the national authority—not other specified bodies—to take action under Clause 46 against damaging and unauthorised agricultural activities. That is the effect of the amendment. Having carefully considered the matter, we concluded that giving the power to one authority in each country will be likely to encourage consistent use of the power. We hope the amendment will prove welcome to noble Lords.
Amendment No. 63 replaces one of the criteria that governs when this power can be used. Again, it does that in response to persuasive points made in Grand Committee—notably by the noble Lord, Lord Rotherwick. For the current requirement that unauthorised agricultural activity must be detrimental to,
"the protection and promotion of sustainable agriculture on the land" before action is taken, the amendment substitutes a requirement that the activity must be detrimental either to the interests of the occupier or anyone else with rights over the common or to the public interest in the common.
Before opting for an amendment in this form, we considered carefully the arguments for linking this formulation to the one used in Clause 31(1) relating to the functions which can be given to a commons association. We concluded that this would not fully cover the situations in which this power might be required. Our amendment allows action to take place to stop unauthorised agricultural activity where the activity would damage the interests of rights holders. It would also ensure that where unauthorised agricultural activities were detrimental to the public interest, it would be possible to act. Amendment No. 65 is entirely consequential on this amendment, while Amendment No. 71 defines "the public interest" for this purpose in the same terms as used elsewhere in the Bill. I beg to move.
My Lords, we welcome those government amendments. In particular, we are glad to see the end of the previous definition about sustainable agriculture. We are better without that. Government Amendment No. 71 is a welcome response to our debate in Grand Committee on the nature of public or private interest. It is reassuring that a clear definition of the public interest has been included and to see that both private interest and public interest are represented equally in this part.
My Lords, we too welcome these amendments. It is nice to be able to agree so wholeheartedly with what has been done. I am particularly pleased with government Amendment No. 70. Indeed, we had already written an amendment that was almost word-for-word the same. We believe that the responsibilities lie where they should, with the appropriate national authority. It has the expertise to judge many of these issues. We are grateful for what seems to be a satisfactory conclusion to our thoughtful debates in Committee. Many points were made and we are glad to see that they have been accepted.
My Lords, I welcome the amendments that are included in this group that have been tabled in response to my amendments, especially in the light of the fact that they remove the unpalatable words, "sustainable agriculture", and bring greater clarity to this part, which is what I sought. I thank the Minister.
My Lords, I want to add my congratulations to the ministerial team. Earlier I failed to refer to the specific reference to archaeological remains and historic interest in the new version of Clause 43. It appears again here and I am delighted. I know that a great many other people who have been concerned about this point will also be very pleased.
moved Amendments Nos. 63 to 71:
Page 26, line 9, leave out paragraph (c) and insert—
"(c) the activity is detrimental to—
(i) the interests of persons having rights in relation to, or occupying, the land; or
(ii) the public interest." .
Page 26, line 11, leave out "relevant" and insert "appropriate national"
Page 26, leave out line 19 and insert "matters specified in subsection (1)(c)(i) and (ii);"
Page 26, line 23, leave out "relevant" and insert "appropriate national"
Page 26, line 29, leave out paragraph (a).
Page 26, line 36, leave out "a relevant" and insert "the appropriate national"
Page 26, line 43, leave out "relevant" and insert "appropriate national"
Page 27, line 1, leave out subsection (8).
Page 27, line 12, at end insert—
"(9A) The reference in subsection (1)(c)(ii) to the public interest includes the public interest in—
(a) nature conservation;
(b) the conservation of the landscape;
(c) the protection of public rights of access to any area of land; and
(d) the protection of archaeological remains and features of historic interest."
On Question, amendments agreed to.
Clause 51 [Power to amend enactments relating to common land or greens]:
moved Amendments Nos. 72 to 73:
Page 28, line 24, leave out ", or in the same session as,"
Page 28, line 27, leave out from beginning to "common" in line 28 and insert "it is expressed to apply (generally) to common land, any"
On Question, amendments agreed to.
Clause 52 [Power to amend enactments conferring functions on national authorities]:
had given notice of his intention to move Amendment No. 74A:
After Clause 53, insert the following new clause—
Natural England, in England, and the Countryside Council for Wales, in Wales, shall advise the appropriate national authority on the operation of the Act, and shall in particular from time to time report on the effectiveness of commons associations established under Part 2 in relation to—
(a) the discharge of their functions, and
(b) the extent to which they have had regard to the public interest in discharging those functions."
My Lords, I think that the arguments behind this amendment have been dealt with thoroughly. I shall therefore not move the amendment.
moved Amendment No. 74B:
Page 30, line 35, at end insert—
""access" means the rights of the public to enter or remain on registered common land within the meaning of the Countryside and Rights of Way Act 2000 (c. 37) and rights exercised under—
(a) the Metropolitan Commons Act 1866 (c. 122);
(b) the Commons Act 1876 (c. 56);
(c) the Commons Act 1899 (c. 30);
(d) the Commons Act 1908 (c. 44);
(e) the Law of Property Act 1925 (c. 20); and
(f) all other relevant Acts relating to access on commons and town and village greens, whether public, local, personal or permissive."
My Lords, this amendment arises from an extremely interesting debate in Committee on access. Noble Lords will recall that I tabled an amendment on the lines of the beginning of the amendment now before us. It mentioned only,
"the rights of the public to enter or remain on registered common land within the meaning of the Countryside and Rights of Way Act 2000".
The earlier amendment finished at that point. Both my noble friend Lord Greaves and the noble Baroness, Lady Farrington, chided me for being so selective— which is the best way to describe the situation—in choosing to quote only the Countryside and Rights of Way Act 2000. I have discussed this with a number of people. My revised amendment tries to ensure that anyone reading what will be the Commons Act 2005 will be able to find in this clause—
My Lords, I understand that the noble Lord is not into point scoring, but I read in the Bill that this is to be the "Commons Act 2005". I may have been looking at the wrong version; perhaps it said that only in its first form and that it was amended in Committee to refer to "2006". I think that it is worth checking.
The new amendment casts the net wide. I have taken on board the points made by my noble friend and the noble Baroness in Committee that a considerable amount of additional access is permitted through previous Acts of Parliament and other lawful means of access. Noble Lords will see that Amendment No. 74B now includes references to the Metropolitan Commons Act 1866, the Commons Act 1876, the Commons Act 1899, the Commons Act 1908 and the Law of Property Act 1925. Paragraph (f), in trying to take the broadest account of what was said in Committee, states,
"all other relevant Acts relating to access on commons and town and village greens, whether public, local, personal or permissive".
It would be great if people could check the definition of "access". They could now find it in this Bill so far as common land is concerned. I know that access is mentioned in passing in other parts of the Bill, but here they would be able to check precisely on their rights. Without more ado, I beg to move.
My Lords, this amendment would introduce a definition of the word "access" by reference to a number of previous Acts. When the noble Lord tabled an amendment on this subject in Grand Committee, his concern was to ensure clarity about the type of public access referred to at various points in the Bill. At that stage he had in mind to refer in his definition only to CROW access, but he has now suggested a more broadly framed definition. In my letter to noble Lords dated
Essentially, our difficulty is that we disagree that a generic definition would be helpful. In fact, we think it would be positively unhelpful. The reason for this is that each time we use the word "access" in the Bill—and currently it has eight separate mentions in the Bill as amended so far—we use a formulation to fit that particular context. Where they are different, they are different for a reason.
Four references form part of the identical inclusive definitions of the phrase "the public interest" that appear in Clauses 16, 31, 39 and 46, which we have just amended to include this definition. The fifth reference avoids impacts on existing access rights by any order we may make under Clause 36 to amend local measures relating to management of common land. Two references relate to works on common land. One helps to set the scope of the works control system under Clause 38, while the other reference forms one of the grounds on which an order under Clause 43 may give an exemption from the requirement for approval for works. We dealt with the last reference when we considered Amendment No. 58 earlier.
As I say, these formulations are different for a reason. To take the example that best makes the point, the reference in Clause 38 to works preventing or impeding access is not a reference just to rights of public access, it is a reference to access of any description whatever—by statute, by custom or tradition, by commoners for the purposes of exercising their grazing or other rights, and so on. It also includes access to the subsoil of the common, so that any new artificial surfacing is also likely to be caught. This was the formulation used in the Law of Property Act 1925 and we intend it to have the same meaning in the Bill.
It would be unfortunate if we were inadvertently to alter the focus of the works control system through a desire to introduce a generic definition of "access" into this general interpretation clause. We believe that it would constrain the meaning of the word in a way which I know is neither intended nor would be helpful. That is why I welcome our short debate on the question of definition, but on this occasion I believe that the Government are right.
My Lords, the Minister has given a detailed reply. I understand the different circumstances in different parts of the Bill that relate to different aspects of access and, in particular, how the activities on common land that we have debated in previous amendments are relevant. I have made a brave attempt to include the amendment in the Bill. I hope that what the Minister has said very carefully on access will be given prominence in the regulations. That might assist people to understand why access is being treated in that way.
Clause 59 of the amended Bill, the Short Title, states:
"This Act may be cited as the Commons Act 2005".
I was surprised, which is why I quote it. I thought that it might be "2006". Without more ado, I beg leave to withdraw the amendment.
moved Amendment No. 75:
Page 32, line 21, after "(3)" insert ", (3A)"
My Lords, this is the last group of amendments on Report. It includes government Amendments Nos. 75 to 78 and Amendment No. 79, in the name of the noble Baroness, Lady Byford. Unusually, I shall deal with that amendment, in passing at least, before the noble Baroness has spoken to it, because, as I will explain in a moment, we are happy to consider it.
Government Amendments Nos. 75 and 76 respond to amendments that the noble Lord, Lord Greaves, tabled in Grand Committee and which we agreed to consider. They relate to the provision in Schedule 1(2) that enables application for the registration of waste land of the manor. Such applications must relate to land provisionally registered as common land under Section 4 of the 1965 Act but where the registration was cancelled in certain circumstances.
These amendments—Amendment No. 75 is simply a paving amendment—provide that application under paragraph 2 will be possible in one new class of case. That is where the registration was referred to the Commons Commissioners—they were here at the start of Report and are here in the last group—and the commissioner concluded that the land was not subject to rights of common but failed to go on to consider whether the land qualified to be registered as waste land of the manor.
In our view—and the courts lend that view some support—the commissioner should have considered the question of status as waste land of the manor regardless of whether or not it was argued before him. That is because the commissioner was not simply deciding a case between the parties to an application but determining a matter of public interest. So this amendment will enable such cases to be reviewed where application is brought forward under paragraph 2 and where the land continues to have the status of waste land of the manor at the time of application.
Amendments Nos. 77 and 78 address the other side of the coin in Schedule 1. Paragraphs 4 and 5 of that schedule deal with deregistering wrongly registered common land and town or village greens. The amendments respond to a concern raised by the noble Earl, Lord Peel, about the criteria for application under those paragraphs.
As the Bill stands, an application could not be made in respect of any land where the original registration was referred to the Commons Commissioner for determination. That is because the commissioner was the proper tribunal to sort out any disputes about registration and we do not intend to reopen such matters, which were thrashed out at the time. But the noble Earl told us that there was a possibility that paragraphs 4(2)(b) and 5(2)(b) could be read as meaning that an application could not be made even where the commissioner was required only to determine the rights exercisable over the land. Where there was no objection to the registration of the land itself, the commissioner was unable to remove the land from the register, even if it was patently obvious that the land was not common land. We believe that the Bill already has that effect but are happy to ensure that the matter is put beyond reasonable doubt.
Amendment No. 79 reprises an amendment tabled in Committee by the noble Baroness, Lady Byford. I apologise to the noble Baroness that we have not addressed the issue in our amendments or in correspondence. We have looked at the concerns briefly raised by the noble Baroness in Committee and have some residual doubt about whether the wording of paragraph 5(3)(a) ensures that the physical impediment must have been present for the whole 20-year period. That is why we felt unable to respond to her amendment in Grand Committee. We are continuing to consider whether amendment is necessary but do not believe that Amendment No. 79 fits the bill. Should an amendment be required, we will aim to table one at Third Reading. I beg to move.
My Lords, I am grateful to the Minister for his comments on Amendment No. 79, which is grouped with these amendments. He indicated in Committee that he would come back on the issue but, unfortunately, sometimes these matters slip through the net. We look forward to hearing whether he thinks the amendment is necessary. If he does not think it is needed we may return to it. We have plenty of time before Third Reading, and I hope that the Minister will respond to our concerns.
On behalf of my noble friend Lord Peel I thank the Minister for responding to issues that he raised in Committee. I know that he is grateful to the Government for addressing those matters.
As these are the last amendments—I shall obviously not be moving Amendment No. 80—I thank both Ministers for how they have conducted the Bill through Report stage.
My Lords, I thank both Ministers for how they have taken the Bill through so far. We have won some, drawn some and lost some, which happens with a Bill of this kind. I am fascinated that in the last group of amendments the commons commissioners are mentioned, albeit in a historical sense, but they were operative at the time of the registration period and have been so up until now. Certainly there is food for thought there. I thank the Ministers for their co-operation.
My Lords, before the Question is put, I thank noble Lords for their kind comments about my noble friend and me. I reciprocate those comments to the Benches opposite. We have done well to complete the Report stage in the time that we have.
moved Amendments Nos. 76 to 78:
Page 32, line 30, at end insert—
"(3A) The circumstances in this sub-paragraph are that—
(a) the provisional registration was referred to a Commons Commissioner under section 5 of the 1965 Act;
(b) the Commissioner determined that the land was not subject to rights of common and for that reason refused to confirm the provisional registration; and
(c) the Commissioner did not consider whether the land was waste land of a manor."
Page 33, line 32, after "registration" insert "of the land as common land"
Page 34, line 12, after "registration" insert "of the land as a town or village green"
On Question, amendments agreed to.
[Amendment No. 79 not moved.]
Schedule 2 [Registration: transitional provision]:
[Amendment No. 80 not moved.]
Schedule 3 [Works: supplementary amendments]:
moved Amendments Nos. 81 and 82:
Page 38, line 24, at end insert—
"(c) land not falling within paragraph (a) or (b) which is in the New Forest and is subject to rights of common"
Page 39, line 8, at end insert—
"7 The prohibition in section 38(1) does not apply to works carried out in connection with the taking or working of minerals if—
(a) the works were granted planning permission under any enactment before the commencement of section 38;
(b) the works are carried out in accordance with that planning permission in the period allowed for the works to be carried out (subject to any extension of time granted before or after the commencement of that section)."
On Question, amendments agreed to.