Clause 38

Commons Bill [Lords] – in a Public Bill Committee at 9:45 am on 27th April 2006.

Alert me about debates like this

Prohibition on works without consent

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

I beg to move amendment No. 54, inpage 21, line 27, after ‘of', insert ‘materially'.

Photo of Michael Weir Michael Weir Shadow Spokesperson (Work and Pensions), Shadow Spokesperson (Trade and Industry)

With this it will be convenient to discuss the following amendments:

No. 55, in clause 38, page 21, line 31, after ‘of', insert ‘permanent'.

No. 56, in clause 38, page 21, line 33, at end insert—

‘(d) the parking of vehicles used as accommodation.'.

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

We now move on to part 3 of the Bill, on protection of commons, which is a very important aspect of the legislation. Clause 38 is about prohibition of works without consent, but it is clear from subsection (1) that the relevant consent is that of the appropriate national authority, which effectively means the Minister, and I think that most people would say that a sense of proportion is needed regarding which issues should go to the ultimate decision-making point of a Whitehall Minister, when both the common and the issue concerned might be very small.

Amendments Nos. 54 and 55 therefore seek to introduce a de minimis position and a sense of proportionality on some aspects, as do certain later amendments that could equally have been grouped with these, and to which I shall refer later.

Amendment No. 54 would simply insert the word “materially” into the sentence that defines restricted works—works which require consent—as

“works have the effect of preventing or impeding access to or over any land to which this section applies.”

The Country Landowners Association has suggested inserting the word “materially” before the word “preventing,” to prevent vexatious litigation and delay through someone saying that a minor work has impeded access, when the work may be an urgentand sensible piece of commons management. The regulatory and, dare I say it, bureaucratic process of seeking Government consent will be considerable, and the amendment deals with that.

Amendment No. 55 was touched upon on Second Reading. It refers to fencing. Obviously nobody wants to fence off a common permanently. It is reasonable that permanent fencing should require consent, because it seriously undermines many of the attributes of much, although by no means all, common land.For example, there are fenced commons in my constituency. However, there is a distinction between that sort of permanency and the temporary arrangements using electric fencing, for example, which may be necessary to keep stock off roads.

We discussed on Second Reading how much road traffic has increased and developed since commons were invented. Not too many sheep were run over by horses and carts, but they are more likely to be run over by a Harley-Davidson roaring across the common, as I have seen in my constituency. Sometimes, there is logic in requiring an electric fence to prevent stock from straying on to roads. However, the converse is using electric fencing to prevent stock from straying into areas of a common that, for conservation purposes, it may be right to exclude them from. Such fences may be used to keep stock off private property, which is a matter of common sense, although arguably it is the private landowner’s responsibility to fence stock out. Lots of gardens and  drives open on to common land. However, it may be simpler to erect an electric fence, rather that facethe major issue of constructing permanent fencingon private land. The amendment would insert proportionality into the Bill so that the Minister and his officials are not besieged by requests for miniscule works.

Amendment No. 56 is slightly different; I touched on its subject on Second Reading. It would insert in subsection (3) reference to the works that need consent, especially

“the parking of vehicles used as accommodation.”

I am aiming this measure at Travellers. In my constituency, we have the serious problem, which is not unique, of Travellers parking on common land and often leaving a dreadful mess behind, if they ever leave. It is difficult to remove them.

The amendment would not change the law on the illegality of parking on common land—I am not suggesting that it does—but by including a provision requiring people to get consent from the national authority in charge of commons before parking a caravan on common land, it adds emphasis to the perception that what they are doing is illegal. It takes the matter beyond planning consent and the powersjof the local authority—the planning authority—to national consent through the Government.

The amendments are straightforward and designed to improve the basis on which the prohibition applies. I should be grateful if the Minister agreed to them.

Photo of David Drew David Drew Labour, Stroud 10:00 am, 27th April 2006

I concur with the hon. Gentleman on the last thing he said about amendment No. 56, which makes a lot of sense. However, I am concerned about amendments Nos. 54 and 55. If things are only referred to as permanent—through the Secretary of State or his representative—it prompts the question of whether anything temporary will be allowed to exist for a significant period. All hon. Members can provide instances of something that was agreed to on a pro tem basis, but became effectively permanent because action was never taken.

I urge the Minister to clarify what is meant by the words “temporary” and “permanent”, if that is possible. Also, I urge him to withstand the honeyed words of the hon. Member for South-East Cambridgeshire, as there are some dangers in laying down something that would make it difficult to intervene when clearly there has been a problem.

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

I understand the hon. Gentleman’s concern. Obviously, it would be unacceptable if a temporary fence—an electric fence, for example—became permanent because it was left in place for umpteen years. He is right about that, but I contend that the Bill as drafted allows for that. I am tryingto insert the word “permanent” in subsection (3), which lists particular examples of restricted works. Subsection (1) states that restricted works may not be carried out without consent. I would argue that the structure of subsections (1), (2) and (3) means that if something is considered permanent because it has been there for some time, representations could be made to the Minister to say that it is not temporary but outside the exemption created by my use of the word  “permanent”, and the legality of that fence could be challenged at any stage if it appeared to be permanent but did not have consent.

Photo of David Drew David Drew Labour, Stroud

That is why we need the Minister to arbitrate on exactly what the terms mean. I understand what the hon. Gentleman is trying to do, but there are dangers that one could diminish the power to take action because of a lack of clarity about the grounds for referring cases to the Secretary of State. I hope that the Minister will put my fears to rest, and I urge him to stand firm on the clause as drafted.

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

I support the amendments simply because we are creating a new body of law thatis practical. The hon. Member for South-East Cambridgeshire referred to instances when temporary fencing is needed. For example, in conserving biodiversity, grouse moors and so on, there are times when under-grazing is a problem but also times when over-grazing is a problem. It is not reasonable to expect somebody to apply for permission each season. All the expense and trouble will put people off getting involved in management procedures if they need to take that route each and every time.

Some examples have been given of why one might need temporary fencing. I shall offer one or two others. As a consequence of the foot and mouth debacle, many thousands of hefted sheep have been lost from the uplands. Hefting of sheep is not easy—it does not happen overnight—and commoners have to put up fencing to re-heft sheep, if that is the right term. If commons are to work, they need hefted sheep, but it is obvious sheep cannot be re-hefted on most commons without fencing. Those of us who live near common land see that day in, day out. It is a necessary consequence of looking after living commons, which I hope we will achieve by virtue of this Bill.

The point of the exercise is to ensure that the procedure is simplified. I do not in any way want people wrongly to fence off commons permanently—that is not right, and none of us wants it. If somebody wants to install a permanent fence for special reasons, he or she must apply for full permission. That I fully understand, but this is an entirely different kettle of fish.

I mentioned nature conservation. There are times when common land is improved, or even when parts of it are reseeded, and that is all to the good. One needs to fence in areas during reseeding. I am sure that there are many other examples.

Photo of David Drew David Drew Labour, Stroud

But surely those are just the cases on which a commons association or a commons committee would get consensus or agreement and therefore there would not be any difficulty. We are talking about cases where there clearly is a dispute.

Photo of David Drew David Drew Labour, Stroud

Well, it could well be that these are particular cases where disagreement arises, which is why, as a failsafe, we can go to the Secretary of State.

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

I am not terribly keen on pushing cases through to the Secretary of State and the National Assembly for Wales. They have enough to do already. According to what I have just heard, some people might not take the cases there, but that is a fresh political point.

I am talking about prohibition on works without consent. It is an absolute prohibition. I agree with what others have said eloquently, which is that we need flexibility to allow temporary measures to be taken. That is all the clause is about, and no more and no less. It is not a back-door means of evading the Act. However, the hon. Gentleman’s reading of the clause is slightly erroneous. It is not do with disputes as such, but with restricted and prohibited work.

I fully agree about the parking of vehicles to be used as accommodation. We all know examples of that. I have no axe to grind with the Traveller community. Part of the problem is that local authorities do not provide sites for them, and that happens throughout England and Wales.

Photo of Dan Rogerson Dan Rogerson Shadow Minister (Office of the Deputy Prime Minister)

During the debate on the parking of vehicles foraccommodation purposes, I was struck by something that seems to behappening more in Cornwall. I refer to the parking of vehicles that areused effectively for signage in that signs are painted on the sides ofvehicles presumably to get round planning regulations. Does the hon.Gentleman think that it would be helpful for the Minister to come backon thatissue?

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

It is right and proper to raise the matter in thedebate, but I believe that that is more to do with planning law.However, no doubt the Minister will address the issue when he sums upthe debate. It was a good point.

It has also been put to methat, under clause 38(3)(c), there should be an ability, albeitlimited, for ditches and wooden posts to be erected on the perimetersof commons and village greens to prevent 4x4 vehicles from beingunlawfully driven across land and to stop joyriders and so on. Thatwould also deter wholesale fly-tipping. I do not know theMinister’s view, but we all know that it is a major problem. Itis a major problem in parts of south Wales, as it is inmanyareas. It destructs grazing land, the natural environment and itaffects biodiversity. What would the hon. Gentleman do to prevent 4x4vehicles from encroaching where they should not? No one wants thepublic’s access to be impeded, but it is a point that might wellbe considered.

Ishould like the Minister’s view on another representation that Ireceived. If he cannot respond to it today, perhaps he will drop me aline. For the first time, the provisions would prevent mineral workingfrom taking place on common land without the consent of the Secretaryof State or the National Assembly for Wales. I have been advised thatthat might be undesirable for two reasons. First, it is an additionallayer of regulation in that planning permission is still requiredbefore such activities are carried out. The planning regime is moreappropriate for such consideration. Secondly, the test would have to bewidened to take into account conservation,  public interest and public access issues before such consent can begiven, and that may be inappropriate under the Bill. I should begrateful if he could comment in duecourse.

The amendmentsare sensible, because they introduce an element of proportionality.That is important, because we want a regime that is regulated, butnevertheless practical, and that allows for commons to be living and tobe maintained for the commongood.

Photo of David Maclean David Maclean Conservative, Penrith and The Border 10:15 am, 27th April 2006

I rise to support the amendments tabled by myhon. Friend the Member for South-East Cambridgeshire, and to give mystrong support to the comments made by the hon. Member for MeirionnyddNant Conwy on the need for occasional temporary fencing to deal withpractical farming problems on commons. There is no philosophical orpolitical divide on this issue, and the hon. Member for Stroud has gotthings slightly wrong—one would not want to go to the Ministerto settle disputes. What we are talking with regard to reseeding is asituation in which all the commoners agree to reseed a few acres ofland and that they should have a temporary fence, such as an electricfence, in place for a few months until the grass seedtakes.

If commonershave to go to the Minister on every occasion that they want a fewhundred yards of electric fence for a few months until the grass seedtakes, he will be very busy. I come across such cases all the time.There are hundreds of miles of stone walls in Cumbria that run overcommons, and most of them are fairly clapped-out; indeed many of themfall down. At the moment, farmers who go out in the morning to checktheir lambs may see that a few yards of stone wall have fallen down andthat sheep are pouring through. They are not going to bring in theEnglish dry stone walling champion Steve Allen from Tebay, who charges£13 a yard; they will fix it themselves over the following fewweeks. Every time they go out to feed the sheep in the morning, they doa little bit of stone walling and, in the meantime, they stick up fiveyards of fencing round the gap in the wall to stop the sheep and lambsgoing through.

Isuspect that that is happening at this precise moment in Cumbria, andit happens every day of the week. If a bit of temporary fencing to pluga gap in the stone walls has to be the subject of an application to theMinister, he will get 20 applications a week from Cumbria alone. Thatis not what will happen, however. Instead, the requirement will just beignored, and I do not think we should have a law on the statute bookthat is ignored because it is practically impossible tooperate.

I am not surethat the term “permanent,” as usedby my hon.Friend the Member for South-East Cambridgeshire, is the right, or thebest, word. However, that part of the Bill that deals with the erectionof fencing is unworkable in practical farming terms. We shall have toexamine it again and consider either having definitions of the words“permanent” or “temporary” that are not asthreatening as the hon. Member for Stroud believes, or making thedefinition of fencing erection a bit more wordy so as to explain  that temporary, short-gap fencing to deal with holes in stone walls, orfor reseeding, ispermitted.

There arenumerous other examples of temporary fencing. On the Pennine fells,there were 2,000 lead mines, meaning that there were 2,000 verticalholes in the ground where people dug down 50 to 60 ft until they hitthe lead, and then tunnelled along a bit. Nearly all those holes arecapped now, so that not too many people fall down them. However, theodd sheep disappears. When farmers go out on the fells and they find adeep hole like that or a wet boggy bit that sheep go into and never getout of, they are not interested in erecting miles of fencing. They wantto put up five or six yards of fence around the wet boggy hole untilthe farmer can do something about it. If we have to go to the Ministerabout a bit of fencing round a wet hole in the ground or a crevice thathas materialised, he will be verybusy.

I do not havethe solution, and I am not sure that my hon. Friend’s word isexactly the right one to deal with the problem without driving a coachand horses through the law—the concern of the hon. Member forStroud—but the point will have to bereaddressed.

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

The amendments are the first that the Committeehas considered on part 3 of the Bill. Before I comment on them indetail, and with your indulgence, Mr. Weir, it may be helpful if I givesome background explanation of the works control system that is thetheme of most of this part of theBill.

The regime datesfrom the fundamental reform of property law undertaken in the early1920s and culminating in the Law of Property Act 1925. Strong concernwas expressed at the time that, as a result, commons would becomeclosed to both commoners and the public and would turn by default intoordinary private land. The result of that fear was sections 193 and 194of the 1925 Act. Section 193 introduced a public right of access forair and exercise to commons in urban districts and boroughs.

The original plan was to makeall commons subject to those access rights, but that plan metopposition in the other place, so a compromise was reached that ruralcommons were not to be subject to express rights of access under thelegislation. Instead, section 194 provided that, on all commons,fencing or works that would prevent or impede anyone’s accesswere unlawful without the prior consent of the Secretary of State.Section 194 has made such provision ever since, with the result that,by and large, a wonderful national resource remains largely open,unspoiled and suitable for the exercise of common rights and publicenjoyment, and as a fantastic pool of landscape, wildlife and heritagefeatures that I know all Committee members seek to celebrate and allowto continue.

Theregime in part 3 is substantially the same as the one in section 194,which it will replace. However, it updates the controls in certainspecific ways to make them clearer and more consistent, particularly onwhat types of land are covered by the regime and what types of worksare exempt. For example, the present controls  apply only to land subject to rights of common in 1926. As time goes on,that becomes more and more difficult to establish with any certainty.The Bill will create a clear link between works controls and landregistered as common or, in some cases, exempted from such registrationin the 1960s.

Finally,the Bill will ensure, as far as possible, that when the nationalauthority’s consent is required for works on commons, a uniformset of criteria will guide their determination. That is not thesituation at present. I hope that those remarks are helpful in settingthe scene for part 3, which had proportionally less scrutiny in theother place than the other partsdid.

I am afraid thatour view of amendment No. 54 has not changed from the view that we tookin the other place. Adding the word “materially” wouldsimply make the provision more difficult to interpret. There would beall manner of debate about what “materially” meant and towhom. Different landowners, enforcing authorities and members of thepublic would take different views on the subject.

It is unlikely that trivial orinsignificant works on commons would be regarded as contraventions ofclause 38 as it is now worded any more than they are under identicalwording about preventing or impeding access in section 194 of the 1925Act, which has stood the test of time for more than 80 years. It iseven less likely that a county court would make an order against suchtrivial or insignificant works in the event that it was asked to doso.

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

What the Minister says is right—the countycourt will not make an order in a de minimis situation—but somemember of the public will undoubtedly take it upon him or herself toinitiate the proceedings, causing delay, cost and everything else to nopoint. That underlines the need for theamendment.

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

I listened to the hon. Gentleman with care, as Ialways listen to the hon. Member for South-East Cambridgeshire—Iwould not want him to feel left out—but I return to the problemof defining “materially”. The Bill includes a mechanisminclause 43 to exempt certain works from clause 38 and takethem en masse, but I shall come to that in a moment. I encourage thehon. Member for South-East Cambridgeshire to withdraw amendment No.54

Amendment No. 55would also create definitional problems. In the end, no fence ispermanent. While supporting the amendment, the right hon. Member forPenrith and The Border made this point to some extent: all fences falldown in the end and need to be replaced. The amendment’sformulation might result in the outcome that no fence at all requiredconsent.The hon. Member for South-East Cambridgeshirementioned electric fencing, which might appear to be more temporarythan other forms of fencing but which can be just as much of animpediment to access as permanent fencing.

It being twenty-five minutespast Ten o’clock, The Chairmanadjourned the Committee without Question put, pursuant to theStandingOrder.

Adjournedtill this day at Oneo’clock.