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Government amendment No. 78, which builds on an amendment proposed to us by the National Trust, addresses that matter. It makes it clear that the purpose of the power is simply to enable any existing consent criteria or procedures for works carried out under local or personal legislation to be made consistent with the criteria and procedures set out in part 3 of the Bill. The
amendment does this for both the current subsections (2) and (4) of clause 44, and obviates the need for subsection (5). Government amendments Nos. 79 and 80 are consequential.
As I understand it, the National Trust supports the generality of the Bill’s provisions, and the tabling of Government amendment No. 78 leaves it content that the Bill will not prejudice its interests.
Amendment No. 121, tabled by my hon. Friend the Member for Sherwood, stems from an amendment that we made to the Bill on Third Reading in another place. That Government amendment concerned section 194 of the Law of Property Act 1925 which, as I have already said, is the current statutory provision about consent for works on commons. The Bill will repeal section 194 in due course, but paragraph 6 of schedule 4 makes transitional provision about enforcement under the section until it is repealed.
Originally, paragraph 6 of schedule 4 provided for any person or organisation to seek enforcement action, in the county court, against works undertaken without authority under section 194 of the 1925 Act. Our amendment in the other place said, in effect, that that did not apply to works undertaken before the Bill was introduced into the House of Lords last June—hence the date. In such cases, the status quo would prevail: that is, that only the district, county or unitary council—in Wales, the county borough—the lord of the manor, the owner or others with a legal interest in the land should be able to seek an enforcement order from the county court. Amendment No. 121 would reverse that change, so that any person could seek enforcement, even against “old” works.
We are committed to the principle that, if works are unlawfully undertaken on common land after the introduction of this Bill, anyone should be able to ask the court to take action. I think that that is common currency between me and my hon. Friend the Member for Sherwood. Everyone now has a direct interest in keeping commons open and unspoilt, thanks to the Government’s historic achievement in giving people legal access rights over commons throughout the country. So for the first time, the Bill extends the power to seek enforcement action against unlawful works to any person or organisation.
My hon. Friend the Member for Sherwood has a distinguished record of personal interest in open space protection and public access, and I fully understand why he has proposed amendment No. 121, but it is about the past, not the future. The issue that it raises really boils down to this question: should any person or organisation be able to go to the court and ask it to enforce against unlawful works that were undertaken before the Bill even began its passage through another place?
In practice, the question is not that simple. The Limitation Act 1980 rules out enforcement against works undertaken more than 12 years ago. Moreover, as I am sure my hon. Friend the Member for Sherwood is aware, the effective window for action tends in fact to be much narrower than that, because the courts look very critically at any suggestion that they should make any type of order against works that are more than a few years old.
In reality, there is likely to be a limited number of cases in which the amendments would make a practical
difference to the enforcement position. Our view is that where works were undertaken within the narrow time window and without consent it would not be right for us to open the scope for anyone to seek enforcement action. In the end, those responsible for such works did what they did on the basis of the more limited enforcement regime that then applied. Paragraph 6 as it stands strikes the right balance, and we do not think that it would be just to allow any person to apply to the county court for enforcement action in pre-Bill cases. The situation may, however, be different for future changes to unlawful old works. I hope that that gives my hon. Friend the Member for Sherwood a glimmer of hope.
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Paddy Tipping: Will the Minister explain in plain words why the Government changed their mind on the date? The original Bill was satisfactory. Why was it changed in another place?
Barry Gardiner: In our view, unless national authority consent is obtained, any person will be able to seek enforcement action against the maintenance or extension of unlawful old works. If the practical effect of the new work would be further to impede access, compared with the position before the new work was undertaken, the situation is as set out in the letter I wrote on 11 May to members of the Standing Committee. The letter is in the Library, but I might helpfully quote from it on maintenance of works:
“There appears to have been some confusion about this issue during debate so I thought it might be helpful to set our intentions as to whether consent under clause 38(1) will be required for maintenance to existing works. Works of any description will require consent only if they take place on the common, not if they stand on land adjoining the common, for example on neighbouring farmland. The physical boundaries separating the common for adjoining land, for example the wall between the common and the in-by or enclosed land, is customarily the responsibility of the occupier of that land and not part of the common.”
So, works of maintenance could not require consent.
“New works on the common will not require consent if they are merely maintaining original structures that are lawfully there, provided that maintenance does not create any greater practical impediment to access than the original structure”.
Examples might be structures that receive consent under section 194 of the Law of Property Act 1925 or those where such consent was never needed initially, perhaps because the original works were undertaken before 1926 or under statutory powers.
“New works on the common will not require consent if they are merely maintaining original structures that are lawfully there(6)— provided that maintenance does not create any greater practical impediment to access than the original structure.
If the original works were unlawful when originally constructed, then the situation is a little more complicated. Firstly, if they remain unlawful nothing in the Bill will change that and maintaining them will require consent as for any other works which restrict or impede access. Indeed the original works themselves will continue to require consent. We have clarified the fact that the appropriate national authority will be able to entertain a ‘restrospective’ application and this is set out in clause 39(7) of the Bill.
If the original works are no longer unlawful (because the time in which enforcement action could have been taken under the Limitation Act 1980 has expired) consent will be needed for maintaining them in the same way that it would be needed for other lawful works. This is where only if doing so creates any greater practical impediments to access than the original structure.
Any new works that would increase the size or footprint of previous works, and thereby the degree of impediment to access, will always require consent whether or not the original works had consent. This is because they are not works of maintenance, but works which themselves prevent or impede access.”
I hope that that is helpful and provides light at the end of the tunnel for my hon. Friend the Member for Sherwood. Notwithstanding the cut-off date referred to in amendment No. 121, access authorities have powers under chapter 3 of part 1 of the CROW Act to provide means of access on access land. That would provide a way in which access could be promoted, whatever the status and age of the fencing.
My hon. Friend the Member for Sherwood asked what is, on the face of it, a very simple question—why did we change? I have not yet answered it. It has been evident today that the Government have changed a great deal since the Bill was introduced. On the whole, I believe that the changes have improved it. We have had to reflect on the balance of arguments presented to us both in Committee and in the other place. The consensus and compromise that we have sought to bring will enable us to achieve the intention that we all share—to improve the management of our common lands. That is what prompted us to change our views, so I ask my hon. Friend not to press his amendment.
Mr. Paice: I am grateful for the Minister’s remarks on amendment No. 114. It was clear from the comments of all hon. Members that they supported my aim. If I may put words into the Minister’s mouth, I do not think that he entirely disagreed either, but he thought that he could achieve that aim in other ways. Ministers always say things like that. The principle remains that we do not want, and it would be unwise were it to happen, the national authority—in this case, the Minister—to be besieged by thousands of very minor requests to create works that could be dealt with more simply.
We will look carefully at the regulations and I hope that the Minister is right about the flexibility in clause 43, which he mentioned in response to my earlier intervention. I hope that he is also right about the ability to make exemptions and about fast-tracking. I was proposing not just fast-tracking, but no tracking, in that people should be allowed to use their initiative where appropriate in cases of emergency. We will study what the Minister comes up with. I know that he meant it when he said that in drafting the regulations, he will heed the views expressed this afternoon. I appreciate that.
I am sure that the Minister understands that this is an important point. Nobody wants “unlawful fences”, to use the words of the hon. Member for Sherwood (Paddy Tipping), but there may be times when a temporary arrangement is necessary, so a blanket opposition is not helpful. I suspect that even the most rabid enthusiast for open access would accept that there are times when common sense dictates that measures must be taken. What is important is that the common sense extends to not having to go through all the ramifications of applying to the Secretary of State for consent to do something. If the Minister accepts that argument and his regulations achieve that aim, I shall be happy. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 76, in page 25, line 18, at end insert—
(a) any land was at any time before the commencement of this section land to which section 194 of the Law of Property Act 1925 (c.20) applied, but
(b) at any such time that section ceased to apply to the land by virtue of subsection (3)(a) of that 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.'.
No. 77, in page 25, line 24, leave out ‘subsection (1) or (5)' and insert ‘this section'.—[ Mr. Michael Foster.]
Amendments made: No. 78, in page 25, line 31, leave out subsection (2) and insert—
‘(2) A national authority may for any purpose specified in subsection (2A) by order amend—
any local or personal Act passed before this Act which contains provision for that authority to consent to works on land which is common land; and
(b) any Act made under the Commons Act 1876 (c.56) confirming a provisional order of the Inclosure Commissioners which contains provision for that authority to consent to works on land to which the Act applies.
(2A) The purposes referred to in subsection (2) are—
(a) that of securing that sections 39 and 40 apply to an application for the consent referred to in paragraph (a) or (b) of subsection (2) as they apply to an application for consent under section 38(1);
(b) that of securing that section 41 applies in relation to the carrying out of works in contravention of the provision referred to in paragraph (a) or (b) of subsection (2) as it applies to works carried out in contravention of section 38(1).'.
No. 79, in page 25, line 34, after ‘subsection (2)' insert—
(a) the Secretary of State; and
(b) the National Assembly for Wales;'.
No. 80, in page 25, line 39, leave out subsections (4) and (5).— [ Mr. Michael Foster.]
Mr. Roger Williams: I beg to move amendment No. 118, in page 26, line 23, leave out ‘an agricultural' and insert ‘any'.
Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 119, in page 26, line 39, leave out ‘agricultural'.
No. 120, in page 26, line 41, leave out ‘agricultural'.
Mr. Williams: The previous group of amendments dealt with unauthorised works on the commons and the current group covers unauthorised activities, which the Bill defines as unauthorised agricultural activities. For consistency, there should be another amendment to remove “agricultural” from the clause heading. It is interesting that subsection (8) on page 27, which defines unauthorised activities, does not include the word “agricultural”. That is the point that the amendments try to make.
Activities, which are not necessarily agricultural, that are detrimental to the qualities that we want to conserve sometimes take place on the common or the village green. If unauthorised or unwise agricultural activities take place, of course the national authority should have the power to intervene. However, activities that are not agricultural could be equally detrimental.
When we entered into those discussions previously, the Under-Secretary’s predecessor said, “Oh well, those activities are illegal anyway.” I have tried to find examples of activities that might be detrimental to people’s enjoyment of access or biodiversity that are not illegal but will not be helpful in managing the commons or village greens. They include informal dog racing and other informal sports and activities, which might be acceptable but, if they expanded or their frequency increased, would be unacceptable to people who want to enjoy other informal activities or wish to use commons for grazing and agricultural purposes.
The amendments would therefore remove the word “agricultural” and thus cover more than simply activities that are associated with agriculture. I believe that the farming community would welcome them because, if they were accepted, the Bill would be perceived to deal even-handedly with everyone who has the interests and well-being of commons at heart. I look forward to the Under-Secretary’s response to those simple amendments, which would add something to the Bill.
Mr. Atkinson: I am suspicious of the amendment because it may extend the clause’s scope and intention far too widely. My ears pricked up when the hon. Member for Brecon and Radnorshire (Mr. Williams) mentioned unauthorised dog racing. In our part of the world, we have an old activity called hound trailing, which is popular in the Lake district and in my constituency. Indeed, we had an international—because somebody came from Cork—hound trail meeting the other Saturday, which was a good occasion. The amendment would catch that because the event takes place across a common.
I can envisage problems with informal, sensible activities on the village green that could be caught by the amendment. What about an impromptu football kick-about? What about flying a model aircraft or simply having a party? The amendments risk being far too draconian. As I understand it, authorised activities are a matter for the slightly sinister organisation referred to in the Bill as the “appropriate national authority”—a Kafka-esque sounding body. If something is not authorised by the appropriate national authority, the activities that I mentioned could be caught by the amendment. It could have an unintended consequence of stopping people’s legitimate enjoyment of village greens.
Barry Gardiner: The amendments would considerably broaden the existing power in the Bill for the national authority to deal with unauthorised agricultural activities, extending it to cover all unauthorised activities. The power in the clause is intended as a power of last resort to deal with difficult agricultural problems that are damaging the common and cannot be resolved by other means. It is deliberately focused to address problems such as rights’ holders who may exceed the number of animals that they are allowed to depasture on a common, who are engaging in unauthorised cutting or removal of vegetation or are not removing animals during periods when the common should be cleared of livestock. We do not want to expand the power to encompass a large number of non-agricultural activities that can already be more effectively tackled locally.
I pick up the theme that the right hon. Member for Penrith and The Border (Mr. Maclean) began. Telephoning the Secretary of State in Westminster to report, for example, motorbikes racing across a common, will not be as effective as contacting the local police, who are much closer to the problem, much better informed, and more able to deal with such issues.
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There are already existing enforcement powers to deal with many of the problems that Members have mentioned as occurring on commons and it is not our intention to duplicate them; for example, several Acts deal with driving on common land. Section 193 of the Law of Property Act 1925 makes it an offence where any person without lawful authority drives on land to which the section applies. The section applies to what are often described as “urban commons”—commons that before 1974 were within urban districts or boroughs—and other commons that have been dedicated by deed for public access.
Section 34 of the Road Traffic Act 1988 makes it an offence where a person without lawful authority
“drives a mechanically propelled vehicle...on to or upon any common land, moorland or land of any other description, not being land forming part of a road”.
There is also a host of local byelaws that prohibit driving on common land and greens. Furthermore, village greens are afforded protection under section 12 of the Inclosure Act 1857, which protects greens from injury or damage and interruption to their use or enjoyment as a place for exercise and recreation. It may also be used against those who drive on greens.
I stress that the clause is envisaged as a power of last resort. To widen it as the amendments would allow is not acceptable, so I hope that the hon. Member for Brecon and Radnorshire (Mr. Williams) will not press them.
Mr. Roger Williams: I accept what the Minister says about the clause being the option of last resort. I hope that many of the agricultural problems will be sorted out by the commons councils, so the opportunity for the national authority to exercise the powers would be extremely rare and remote.
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