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The purpose of the amendment is to ensure that when land is released or exchanged that is not done in such a way as to hamper the de minimis element of the Bill, a build-up of release or exchange could take place that could hamper the quality and the values that people put on a particular green or common. We have debated the issue in Committee. However, it is pertinent at this stage because there is an issue whereby the nature and character of land could be changed by consequent and subsequent exchanges or releases.
Mr. Paice: I welcome the Government amendments, but I would be grateful if the Minister clarified something. In the helpful letter that he sent to most hon. Members—and certainly Committee members—he referred to the changes necessary to deal with the point I made in Committee about common land that was not registered but was common land by virtue of another enactment. Parcels of land have been classified as commons since the 13th century, but for one reason or another, some of them were not registered after the Commons Registration Act was passed in 1965. In Committee, we debated the fact that, as the law stands, they cannot be registered subsequently. Will the Minister confirm that when the Bill receives Royal Assent, all those commons, with the exception of the three that he named, can be registered under the 1965 Act as commons, so there is no doubt about their legal status in future?
Barry Gardiner: Government amendment No. 95, which we will debate later, addresses the point made by the hon. Member for South-East Cambridgeshire (Mr. Paice). Turning to amendment No. 116, clause 16 enables a common or green to be removed from the register on application, usually with the provision of replacement land to take its place. That procedure will replace the current statutory exchange process under section 147 of the Inclosure Act 1845. When the national authority determines such applications, subsection (6) requires that it have regard to the interests of the legal interests in the land, the interests of the neighbourhood, the public interest, and any other matter considered relevant. The amendment would add a requirement for the authority to have regard to the cumulative effect of the proposed release or exchange, taken in conjunction with any release or exchange that has previously been consented to.
We would resist the amendment, simply because it is unnecessary. If there is such a history of deregistration affecting the land, the national authority will want to consider whether that is relevant to its determination of a new application. It will, of course, have regard to that as
“any other matter considered to be relevant”,
under clause 16(6)(d). Inserting the words in the amendment would not make any practical difference to the outcome, but I am pleased to confirm to the hon. Member for South-East Cambridgeshire that such matters will be fully taken into account when an application is considered. I hope that with that explanation, the hon. Member for Brecon and Radnorshire (Mr. Williams) will not press his amendment to a vote.
Amendments made: No. 2, in page 4, line 1, after ‘land' insert—
No. 3, in page 4, line 3, after first ‘land' insert—
‘to which this Part applies'.— [Barry Gardiner.]
Mr. Paice: I beg to move amendment No. 112, in page 6, line 41, after ‘greens', insert ‘as attached to land'.
Mr. Deputy Speaker: With this it will be convenient to discuss amendment No. 113, in page 6, line 41, at end insert—
‘in consequence only of a disposition purportedly affecting a severance of that right in contravention of section 9(2).'.
Mr. Paice: These amendments deal with commons that have been partially developed, and I tabled them for two reasons. First, we were concerned that there was a drafting error, but people who know far more about legal jargon than I do agree that there is no such error. Secondly, there is a point of principle. In Committee, in a debate on the apportionment of rights, we discussed carefully what happens when a dominant tenement is sold or split and is partially developed. Indeed, we discussed an example in which one piece of land is developed and lots of individual houses are built on it. The legislation, as drafted, would give all those houses an apportionment of the rights.
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On reflection, I question whether that is right, so the principal purpose of the amendments is to challenge the Government to explain why the right of common should endure if part of the dominant tenement is no longer used for an agricultural purpose. Commons rights were originally attached to agricultural land, as we discussed in Committee—I shall not repeat all those debates today. Former agricultural land could be completely developed and the rights apportioned so that, for example, there is one sheep per house in a new housing estate. Is that logical?
The Minister may well respond that those people will clearly not exercise their right to own a single sheep, and I accept that that may be so, given all the bureaucracy that the Government have imposed on sheep owners. Rights can be transferred under schedule 1—we will come on to that later—but if the owner develops the dominant tenement and decides not to transfer the rights but to apportion them among the properties, difficulties could arise. As the Minister said, we will come on to discuss the establishment of statutory associations—I agree that they should become councils—which brings the issue of rights into play. The logic of the Bill is that all those individual
owners, with perhaps one or two rights each, will all have a voice even though, in reality, they do not have any agricultural interest.
We have discussed many times in the House—indeed, the Minister referred to it himself a few minutes ago—the issue of people who move into a rural area without understanding anything about it. In the example that I gave, however, they could have a significant voice, as they would have to be consulted on the establishment of an association and, indeed, they would become part of it. A welcome later amendment would give preferential treatment to people who utilise their rights but, nevertheless, the occupants of all those houses in the example that I gave would have a say in the establishment of the association, its running and, of course, the management of the commons. I question whether that is right, which is why, despite clarification of the drafting, I tabled the amendments. It is a little late to ask the Minister to go away and think about the issue again, but I urge him at least to reflect on it, and tell the House how he will address the problem that I have identified. When rights are fragmented and many rights owners involved, how can that be dealt with by the management systems and the associations established by the latter part of the Bill? It would have been far better to use a de minimis arrangement to extinguish rights of common in those circumstances.
Mr. Atkinson: I was baffled when we first debated the issue, because those 50 houses might not simply have the right of grazing but other rights, such as rights of turbary. Instead of one commoner having access to peat on the land, 50 of them would have access, which would substantially change the physical appearance of the common.
Mr. Paice: My hon. Friend is right. Our debates in Committee and on Report have inevitably dwelt on grazing rights on commons, but there are many other rights. If, for example, everybody had rights of turbary to cut peat, a whole common could be destroyed by householders digging.
The situation is unfair for graziers, because in theory they must individually approach all the house owners to lease back their unused grazing rights that would otherwise revert to them automatically by the operation of the common law extinguishment. That is not in the interests of the commons or of the normal users of the rights of common.
The Minister needs to reflect on the matter. I hope that he will accept the amendment, but if he is not minded to do so, will he think through what can be done by regulation to deal with the situation that I have described?
Barry Gardiner: The amendments relate to clause 13, which abolishes the principle by which rights of common may be extinguished at common law, except where rights of common are surrendered in accordance with the prescribed procedure. They are intended to ensure that the abolition of that principle is confined only to an unlawful attempt to sever rights of common attached to land.
The hon. Member for South-East Cambridgeshire (Mr. Paice) has raised the question how rights of
common could be apportioned between numerous houses developed on a dominant tenement. It is certainly conceivable that a right of common may be apportioned between numerous dwellings. For example, the commons register may show that farm A has the right to graze 50 sheep. If farm A were sold to a developer, who in turn sold off 50 plots, each of which had a house built on it, each of those house owners would have the right to graze one sheep. We see nothing improper about that outcome. Certainly the owners of those houses are unlikely to exercise those rights, and the constitution of any statutory commons council established under part 2—this important point goes some way to answering the concern raised by the hon. Member for South-East Cambridgeshire—may well give preference to active commoners against inactive householders. So long as the householders are entitled to the right to graze to one or more animals, they will be entitled to exercise it.
The hon. Member for South-East Cambridgeshire has also raised the issue of ensuring that rights of common cease to apply where the dominant tenement is developed. In our view, it is correct to say that the development of the dominant tenement so that it can no longer be used for agriculture would at common law extinguish the rights attached to the land.
Clause 13(3) abolishes that principle, and we believe that that approach is both fair and consistent with present practice. The approach is fair, because it would be invidious for registration authorities to decide whether a dominant tenement had ceased to have an agricultural use. Would a house with a grazing paddock qualify to retain the rights? And what if a large garden could be converted back to grazing? The approach is consistent, because the effect of registration under the Commons Registration Act 1965 was inadvertently to break the link between the number of animals which could be grazed on the common and the capacity of the dominant tenement to over-winter the same animals—the principles of levancy and couchancy. It would be absurd to provide that a 1 hectare smallholding could have any number of rights attached to it, but that the same dwelling with only a small garden could have none.
I do not accept that that change disadvantages the owner of the common. The common will remain subject to registered rights of common, irrespective of changes affecting the dominant tenements to which rights are attached, which is a perfectly reasonable outcome. Of course, if the dominant tenement is developed for housing, it is most unlikely that the rights will continue to be exercised, which will often be to the common owner’s profit. With many lowland commons now under-grazed, the preservation of such rights will also help to ensure the retention of mechanisms through which grazing could be introduced if required.
One of the merits of the registration of rights of common under the Bill is to deliver certainty on the existence of those rights. In our view, it is not helpful if a registered right can be challenged on the grounds of some event happening off register, which means that the right has ceased to exist, although it may remain on the register. I hope that that explanation encourages the hon. Member for South-East Cambridgeshire not to press the amendment to the vote.
Mr. Paice: I am grateful to the Minister for his explanation. I am sure that he has read all the papers and knows that Conservative Members support the Bill’s objectives and its approach to apportionment. I was merely trying to identify a particular problem. I am not entirely persuaded that it is perfectly reasonable for all those individual houses to have the right to graze one sheep. Although I readily accept that it is unlikely that people will want to exercise those rights, they may resist going through the paperwork to lease them to somebody who wants to exercise them. On the Minister’s point about over-grazing and under-grazing, if the rights are to be used, the owner must lease the rights to somebody else in order to lose them, which would be a lot of paperwork for one sheep.
I accept the general point, to which we shall return on the next group of amendments. The Minister has rightly identified the issue of the creation of the association, and we may press him further when we reach the amendment on the balance between those who exercise their rights and the dozens, if not hundreds, of people who do not.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 4, in page 7, line 30, after ‘land' insert—
‘to which this Part applies'.— [Mr. Watts.]
Barry Gardiner: I beg to move amendment No. 5, in page 7, line 33, leave out ‘local inhabitants' and insert—
‘the inhabitants of any locality, or of any neighbourhood within a locality,'.
Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments:
Government amendments Nos. 6 to 9
Government amendment No. 10, in page 8, line 7, at end insert—
‘(4A) Subsection (4) does not apply in relation to any land where—
(a) planning permission was granted before 23 June 2006 in respect of the land;
(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and
(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or
(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.'.
and amendment (a) to the proposed amendment, at beginning of paragraph (b), leave out ‘construction'.
Barry Gardiner:
Government amendments Nos. 5, 6 and 8 respond to the recent judgment of the House of Lords in the Trap Grounds case. In that judgment,
their lordships defined clearly and unambiguously the effect of the form of words that we originally used in the Bill to describe the type of inhabitants whose long use of land may warrant its registration as a green. That original form of words, which was taken directly from the current definition in the Commons Registration Act 1965, was
“the inhabitants of any locality, or of any neighbourhood within a locality”.
Lord Hoffmann’s judgment stated that
“‘Any neighbourhood within a locality’ is obviously drafted with a deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries...The fact that the word ‘locality’ when it first appears in the current definition must mean a single locality is no reason why the context of ‘neighbourhood within a locality’ should not lead to the conclusion that it means ‘within a locality or localities’.”
That interpretation accords well with the intention behind clause 15.
On Report in the House of Lords, we simplified this wording to refer simply to “local inhabitants”, because at that point there were some doubts about the likely interpretation of the original phrasing. Now that the Law Lords have resolved those doubts, we think it best to revert to our original formulation, which will ensure that this criterion for registration is understood.
Government amendments Nos. 7, 9 and 10 respond to the residual concerns expressed in Standing Committee, and since, about the impact of a new registration on any development that may have begun on the same land. Members will recall that in Committee, in response to a point raised by Conservative peers, we introduced clause 15(4)(d) to rule out registration of land as a green if the land had already been built on at 18 April 2006—the date of the amendment—despite a previous long period of use “as of right” by local people.
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The hon. Member for South-East Cambridgeshire (Mr. Paice) suggested that the scope of our amendment might be too narrow. He pointed out that a situation might arise whereby a significant construction project had begun on the specified date, so that the parts of the development constructed after that date would not be exempted from registration and might be rendered unlawful if the land became registered. My ministerial predecessor, who is now the Minister for Schools, asked for some real-life examples of such a situation, but to date none has been produced. Nevertheless, we agree that it is probably best to avoid any possibility of such an outcome arising, so wherever construction works had begun on land by the date of tabling the new amendments—23 June 2006—that will rule out registration of any land that is, or will become, permanently unusable for public recreation because of works carried out under the same planning permission. That will prevent registration of the land as a green regardless of whether the initial construction works were on or off the alleged green, because planning permission might cover both the alleged green, and adjoining land that no-one claims is a green.
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