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Even on village greens, where a residual role for section 68 was initially alleged following Bakewell, we have concluded that there is no circumstance in which the section can help a householder to regularise his use of a vehicular track to his house over common or other land. If the particular driving does not cause injury to the green and the owner of the land could lawfully give permission to drive over the land in the way that the householder has done in past, such use will have been capable of creating a prescriptive right under the Bakewell principle. We do not consider that any special provisions are needed for greens. Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 are both concerned with injury to the green. In our view, whether or not driving across a green in a particular way contravenes those provisions would be a
matter of fact and of degree to be decided on the circumstances of individual cases. If driving does cause injury to the green, section 68 does not reduce the strict protection greens enjoy, which would prevent an easement from being granted at all. I hope that that clarifies the matter and satisfies the hon. Gentleman.
Mr. Peter Atkinson (Hexham) (Con): I apologise to the Minister, because I have been troubling him quite a lot in the past few days, but will he clarify the situation of my constituent whose house is on the edge of a village green and who has created a driveway across the village green? Some years ago, before the CROW Act, he was in considerable difficulty, because the parish council nominally owned the green and was seeking quite a large sum of money to allow him the right of way. Would the fact that he has built a drive across the green constitute damage and would he get any relief from the changes?
Barry Gardiner: I hesitate to pronounce from the Dispatch Box on an individual case without knowing the specific circumstances. If the hon. Gentleman cares to write to me with the specifics, I will do my best to give him a written response that may be helpful.
Clause read a Second time, and added to the Bill.
‘Occupiers of land used for any purposes adjacent to commons on which there are grazing rights must provide and maintain a stock proof fence against the common.'. — [Mr. Roger Williams.]
Brought up, and read the First time.
Mr. Roger Williams (Brecon and Radnorshire) (LD): I beg to move, That the clause be read a Second time.
It is within the law that an owner of livestock is responsible for that livestock and any damage that that livestock causes. However, there has been a practice—certainly in the areas that I represent—that people who occupy land that is adjacent to and surrounding commons should be responsible for erecting a stock-proof fence and maintaining it in such a condition as to prevent stock leaving the common and gaining access to the land that those people occupy. There is some case law to support that, including a case involving a lady who had a cottage and garden that adjoined a common. Stock entered the garden from the common, causing some damage, but it was found that the owner of the livestock was not responsible for the damage because the lady should have erected a stock-proof fence and maintained it in good enough condition. I think that the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) will raise another case.
We have particular concerns about the situation that arises when forestry land abuts a common. The owner of a forestry might think it prudent to maintain a fence during the time that the forest and trees are becoming established, but when the trees reach a size at which they should not be damaged by livestock, he or she might allow the fence to become derelict. That would
obviously put the owners of livestock on the common at a huge disadvantage because the livestock could stray over a great area. We believe that there have been examples of the owner of a forestry selling it on without putting a duty on the future owner to maintain the fence. The situation is causing great aggravation.
The situation does not affect only forestry land. Quite properly, and with appropriate planning permission, industrial land sometimes adjoins a common. The fact that livestock can enter industrial premises and go on to industrial land, where lorries might be moving, is obviously unsatisfactory.
Many people believe that it is a legal duty to fence against a common. We have tabled the new clause to find out the Minister’s attitude to the situation and determine whether anything in the Bill could clarify the situation and ensure that people can use and graze commons quite properly with the guarantee that their livestock would not cause damage, or be damaged, by straying.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): The hon. Member for Brecon and Radnorshire (Mr. Williams) has detailed the concerns that are prevalent in many parts of Wales—and, indeed, beyond. However, the problem is perhaps more obvious in Wales because it has many urban commons. Such commons, in valley areas at least, immediately abut large population areas.
One of the problems was brought home to me quite forcefully earlier this week when I visited Blaenau Gwent and met a group of farmers. This point will be of no conceivable political use because voting is taking place today, but I feel obliged to mention what I was told and will do so, albeit with your permission, Mr. Deputy Speaker. The group farms the upland common; with valleys being valleys, people tend to live on the bottom part. People—young people in the main—go up the hills with little 4x4 tractors and scrambling bikes. They pull down fences to gain access, and that is the root cause of the problem because it obviously allows sheep to stray. However hard the farmers try to maintain stock-proof fences, they are unable to do so because as soon as they carry out work, another unauthorised gap appears further down. The farmers face a terrible situation. Some of them told me that they now send far fewer sheep up the hill than before, which is to their own detriment, because of the vast number of problems that occur. However, the public see the situation as a nuisance because straying sheep are a nuisance.
The Labour party’s answer to the problem is:
“Hit irresponsible farmers where it hurts—in the pocket!”
According to the leaflet that it has produced in Blaenau Gwent, the Labour candidate suggests that farmers who own straying sheep should be given fixed penalty fines on the spot. Of course, farmers always walk with their sheep wherever they are—that just shows how much that particular candidate knows about farming! However, having made that cheap political point, I will move on to a more substantial one.
Mr. Atkinson: That will swing it.
The hon. Member for Brecon and Radnorshire highlighted another serious point. More and more stands of trees are being sold on by the Forestry Commission. The commission had a responsible attitude to fencing in, but some of the commercial concerns to which the trees are sold do not quite have the same feeling about their responsibility to fence. As the hon. Gentleman rightly said, such stands are often sold on without an obligation to fence, so once the new owners have taken the trees away, or even before then, they do not bother to carry out maintenance.
One particular owner that is slow at coming forward to deal with its legal responsibilities on fencing—it is probably the worst that I know of—is Railtrack. Railtrack must be named and shamed every time one wants a fence to be put back. It will do anything to avoid spending on fencing, yet we know how many sheep are killed each year on railway lines, which can often cause serious accidents. A further problem arises due to the fact that redundant coal pits and steelworks often abut common land.
I am grateful to the hon. Member for Brecon and Radnorshire for raising such a serious matter—I was pleased to sign up to the new clause. Mr. William Jenkins and the other farmers in Blaenau Gwent were anxious for the matter to be raised. I told them that it was a bit late in the day, but we should discuss such a substantial point and receive a response to it.
I hope that the Minister will respond in due course because the situation is not only difficult for the commoners, but an animal welfare matter, given that the animals that stray often get killed. I hope that he will be able to give us some comfort about whether any aspect of the Bill could assist commoners who are in such a position. They do not want to receive telephone calls telling them that their sheep are straying, but, with the best will in the world, if their fences are knocked down, what choice do they have? As for the Labour candidate, Mr. Smith, who said that we need on-the-spot fines, any fool knows that we have existing legislation to cover that—the Animals Act 1971. I ask the Minister to address the long-standing problem, as I am sure that he will do in his usual manner.
Barry Gardiner: New clause 2 would impose a general requirement on the owners of land adjacent to a common to fence against the common, which is to maintain an effective boundary to prevent stock from straying from the common on to their own land. Let me begin by saying that I have a good deal of sympathy with the objectives of the new clause. A worthwhile issue has been raised and I am happy to respond to the points that have been made.
In our view, the new clause is not far from representing the existing position in common law. I believe that the hon. Member for Brecon and Radnorshire (Mr. Williams) was alluding to Egerton v. Harding, a case in the Court of Appeal in 1974, in which it was found that it was perfectly proper that a customary right to fence may exist. It is perfectly probable that on most commons in England and Wales, there is a customary law for adjoining property owners to fence against the common. Customary law is the custom of a locality that has existed since time immemorial. The courts will enforce such law, if it can be proven. Typically in such a case, several elderly
farmers would be brought before the court to testify that they and their forebears had always considered it to be the practice to fence against the common. Indeed, nearly all our upland commons are surrounded by stone walls, some of which are of a considerable vintage, that have long been maintained by the owners of the adjoining land.
Of course, the hon. Gentleman would say that it can be expensive to prove the custom in court and that few people might be likely to take up the challenge. I acknowledge, too, as he suggested, that in recent years, some landowners, especially the owners of land that is no longer in agricultural use, tend to presume the contrary view and believe that it is the responsibility of commoners to stop their stock from straying off the common and on to adjacent land. That can sometimes give rise to ill-feeling in local communities when sheep get into householders’ gardens. Such problems are especially acute in parts of south Wales and the valleys where the adjoining land is, or was, in industrial use and the old customs are difficult to enforce.
With specific and, I hope, non-party political reference to the comments made about Blaenau Gwent, I understand that there appears to be a problem there. As I understand it, that partly relates to a minority of farmers allowing fences to deteriorate where there is a question over the ownership or responsibility for the fencing. There is also the matter of the fencing being cut by illegal motor cyclists who are trying to get access to open spaces. There is a lack of clarity about the extent to which off-roaders and farmers are therefore responsible for straying animals.
1.30 pm
Blaenau Gwent is dealing with stray sheep and, I think, horses, by impounding them, identifying them and contacting owners to collect them. The council is not legally obliged to do this, and it is a financial burden. With this in mind the council is proposing a byelaw to deal with straying sheep. I understand that no definite measures have been decided upon to date. Nor are we clear what powers would be used to make the byelaw or, indeed, whether it would be ultra vires.
It often happens that people move into a rural community. They are unaware of customs and traditions and take objection when they wake up in the morning and find local sheep grazing at their front door. They naturally assume that the farmer must be at fault. On most commons, it is not the farmer who is responsible for fencing against strays. Responsibility lies with the householder.
As I have indicated, I have considerable sympathy with the purpose of the amendment. The difficulty is that while customs are believed to be widespread and perhaps commonplace, it cannot be assumed that they are universal. The new clause, if accepted and implemented, would be unfair in relation to common land where there is no such custom. We have no way of distinguishing where the custom applies and where it does not. That is not our role: it is the role of the courts.
Mr. Llwyd: The hon. Gentleman is responding in the manner that I hoped he would, which is reasonably and with a great deal of thought.
I am a lawyer. Court proceedings are expensive and sometimes take a long time. Is there something within the Bill that would allow a forum to be established, if and when individual cases should be almost evaluated, whether or not there is a custom, et cetera? Does the Minister understand the point that I am making? I am talking about an ex officio court or a forum of some sort, that would allow for disputes to be settled within the ambit of the Bill.
Barry Gardiner: I understand the hon. Gentleman’s question.
Commons councils, as I hope that we will get to call them if Government amendment No. 17 is agreed to, may be given the function of establishing and maintaining boundaries under clause 31(3). If a council is given this function, it will not become liable to maintain fences around the common. The provision will enable commons councils to establish fences where they are needed, providing that consent is obtained. The provision will enable a council to maintain fences where adjacent owners are absent or are creating management difficulties by not keeping fences in good condition.
Commons councils will also have powers to do things ancillary to their functions. We would expect a council to be able to bring an action to enforce a custom to fence if necessary. Fundamentally, I believe that there is a distinction between the legislature and the role of the courts. It is the role of the courts to establish whether custom applies in given circumstances.
I cannot accept the amendment, but I hope that the hon. Gentleman will receive what I have said as a helpful statement of our view of the law.
Mr. Roger Williams: I thank the Minister for his response and the way in which he expressed it. There is a difficulty in engaging in legal activity based on custom and practise. There is also the expense that that would entail. The aim behind the new clause was to rule out doubt and to give those who own property adjacent to a common notice that they would have responsibility, perhaps through a search before purchasing the property. I understand the Minister’s difficulty.
The Bill is about the best use of commons and greens, including grazing. Some commons and some commoners find it difficult to exercise their rights and graze commons because of lack of fencing and given the expense that establishing fencing on their own would incur. The Minister has made it clear that on a number of commons people could establish the duty of adjacent landowners to erect fencing. That will give some comfort to commoners and commoners’ associations in future. Given the Minister’s reply, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Barry Gardiner: I beg to move amendment No. 1, in page 3, line 6, leave out paragraph (c).
Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government amendments No. 2 to 4, and Government amendment No 11.
Amendment No. 116, in page 9, line 17 [Clause 16], at end insert—
‘(cc) the effect of any release or exchange in conjunction with the effect in relation to that land of any other release or exchange land for which consent has previously been given;'.
Government amendments Nos. 12, 13 and 15.
Barry Gardiner: Government amendment No. 1 is a consequential change that is necessary because of amendments that we are making to schedule 2, which we shall come to shortly. The amendment ensures that part 1 of the Bill will apply to land exempted from registration by order under section 11 of the Commons Registration Act 1965. The amendment will have no immediate effect on the excepted commons, which cover about 1,000 hectares and which are listed in the annex to the explanatory notes. However, it will ensure that excepted commons may be brought on to the registers under amendment No. 95. and so help to ensure that the registers are properly comprehensive on what is and what is not common land.
Government amendments Nos. 2 to 4 and No. 11 make some minor amendments to clarify references to land in part 1. They ensure that in each place where an amendment is made—clauses 7, 15 and 16—a reference to land is taken to mean the land in England and Wales other than in the New forest, Epping forest and the forest of Dean. This approach is consistent with similar references elsewhere in the Bill.
Without the amendments, there was a small risk that an application to register a green under clause 15, to vary a right of common under clause 6, or for exchange under clause 16, could cause land to be put forward for registration which was actually already unregistered common land in the areas exempted from registration under clause 5. These amendments resolve that risk.
Government amendment No. 12 is a minor and technical provision that secures greater consistency. It removes a redundant reference to part 1 of the Commons Act 1899, which is a form of words not used elsewhere in the Bill.
Government amendment No. 13 clarifies that the powers to correct mistakes in the register under clause 19 extend to mistakes made under the Commons Registration Act 1965. Given the many mistakes which occurred under that Act, it seems sensible to put the matter beyond doubt.
Government amendment No. 15 clarifies that an application duly made under various provisions in part 1, which otherwise complies with any requirements imposed in the Bill or under regulations, must be granted. It makes it clear that registration authorities do not have a discretion to refuse an application other than on the criteria set out in the Bill or in regulations. The amendment does not apply to schedule 2 because the provisions in the schedule already put the requirement beyond doubt.
Mr. Roger Williams: I will speak briefly to amendment No. 116, which stands in my name and in those of my hon. Friends.
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