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Orders of the Day
Commons Bill [Lords]
As amended in the Standing Committee, considered.
‘Section 68 of the Countryside and Rights of Way Act 2000 (c.37) shall cease to have effect.'. — [Barry Gardiner.]
Brought up, and read the First time.
1.6 pm
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Barry Gardiner): I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss Government amendments Nos. 110 and 111.
Barry Gardiner: The amendment repeals section 68 of the Countryside and Rights of Way Act 2000—the CROW Act—in line with the discussion in Committee. Amendment 111 is consequential; the long title of the Bill must itself be amended because section 68 applies to some land other than common land and town or village greens, so its repeal falls outside the scope of the present long title. Section 68 was enacted during the passage of the CROW Act. It was designed to deal with a problem that had arisen through case law for householders who accessed their homes by vehicle over areas such as commons or greens. Section 68 has now become redundant for legal reasons, and repealing it will avoid any mistaken impression that the section has a residual role. We consulted publicly about doing this and will publish a report in due course on the findings of that consultation.
Mr. James Paice (South-East Cambridgeshire) (Con): I confess that I am puzzled by this group of amendments. Obviously I am very familiar with the debates that we have had on the issue of access over common land and village greens, and the work that was done by my right hon. Friend the Member for Bracknell (Mr. Mackay) and others to try to resolve the problems, but I am puzzled about why it is necessary to abolish section 68 of the CROW Act. I hope that the Minister can clarify the reason.
I
am very much aware of the House of Lords judgment in Bakewell
Management Ltd v. Brandwood and it is my understanding that it
is on that basis that the Minister has been advised that section 68
should be repealed. However, it has been put to me that if we remove
section 68 and the possibility of being granted a statutory easement
thereunder, we are in effect reverting to the old arrangements
involving a ransom payment, which were precisely what section 68 of the
CROW Act was intended to overcome, because, as a result of the repeal,
the landowner might then be in a better position than before to make a
charge for a house owner driving over the land to gain access to his
property, and might take all necessary steps to stop an
easement being acquired over it, in order to keep his options open. That
was not the intention of the Government, or indeed the Opposition, when
section 68 of the CROW Act was enacted and I do not understand why we
need to repeal it now.
The Minister said that the section has become redundant for legal reasons, but we do not know what those are. Indeed, it has been put to me that there are no legal reasons for abolishing it. Not impossibly, a householder might actually prefer, notwithstanding having made a payment, to have the grant of a statutory easement under section 68 than to have it prescribed under common law, because of the problems of producing evidence of the use and of getting his title right. To remove that possibility is also unhelpful to householders.
It has been put to me that if we remove section 68, we are in effect reverting to what I understand was called the Hanning v. Top Deck Travel era—with the illegality bar removed—when, for example, a commercial company claimed to have acquired the prescriptive right to drive a double-decker bus over a common, but without being able to do anything effective about it. It is important to remember that section 68 was enacted precisely to address that sort of situation by providing that there should be no vehicular easement to drive over common land, except as provided by section 68. That is an important protection for common land. Why does the Minister want to abolish section 68? What is it about the case to which I referred—Bakewell Management v. Brandwood—that he believes makes it unnecessary?
The argument is that a House of Lords judgment cannot abrogate a statute that this House has passed; it can only interpret it. When we enacted section 68, the House decided that a payment should be made and that there should be no free easement in situations in which Parliament has resolved that there should be a payment. I do not think that anything has occurred to alter Parliament’s view. Following that logic, section 68 is not redundant. The House of Lords does not have the power under the constitution to abrogate a statute. Section 68 of the CROW Act was, in any case, not a pleaded issue in Bakewell Management v. Brandwood. It was not even part of the case. The observations of the House of Lords in that reported judgment, as far as section 68 and the CROW Act are concerned, did not form part of the ratio decidendi—the argument at the end of the case. The contention is that section 68 is not therefore redundant. In fact, it constitutes the only means that the House has provided whereby an easement can be acquired to drive over a common. I hope that the Minister will come back with some more information as to why he believes that what he wants to do is necessary. We all agree with what we were originally trying to achieve, but I am unclear about why it is necessary to abolish section 68 to try to do that. By abolishing section 68, the Minister might be creating more problems than he thinks.
Barry
Gardiner: I am glad to have the opportunity to respond to
the hon. Gentleman’s questions, because it is important that
these matters are clarified. The section and the regulations made under
it were enacted because of the impact of the 1993 judgment known as
Hanning v. Top Deck Travel. Before that case, it had
been thought that home owners who had, for a sufficiently long period,
driven across land such as common or green to gain access to their
property had acquired a legal right to continue doing so by virtue of
prescription or long use. The Hanning case held that that was not the
position, on the ground that a legal right to continue doing something
cannot be acquired by virtue of actions that involve committing an
offence, and road traffic legislation makes it an offence to drive
without lawful authority on land that is not a road. In the wake of
that case, a significant number of householders around the country were
asked to pay large sums of money to continue to drive to their own
property over areas such as commons or greens.
Section 68 was brought about, late in the passage of the CROW Bill, to provide a means by which the payments necessary to secure easements for this purpose could be capped. I want to stress that. Section 68 was not enacted to prevent prescriptive claims of rights of way. It was enacted to cap any payments that, under previous case law, were required to establish an easement. The subsequent House of Lords ruling in the Bakewell Management case in 2004 overruled the Hanning judgment. It confirmed that in circumstances in which the owner of a common or green could, by granting permission to a householder, have made their use of the land for vehicular access lawful, there is no bar on the householder relying on their actual use, without such express permission, to establish the prescriptive right of access.
The reason for enacting section 68, therefore, has disappeared. Where long-standing vehicular use has taken place on land, it is usually the case that the landowner could have given permission for the use so as to prevent its constituting an offence. In such a case, the use would equally be sufficient to create a prescriptive right independently of section 68. If in a particular case, because of some other legislation, it would be an absolute offence to drive across a common or green or to do so in a particular way and the owner has no power under the legislation to grant permission for that use so as to disapply the offence, a right of vehicular use cannot be created at all. We believe that such cases are exceptional, but, where they arise, section 68 has never assisted a householder who has unlawfully been using the common or green for vehicular access and therefore its repeal will not make any difference to that position.
1.15 pm
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.
Mr. Llwyd: I hope so.
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 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.
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?
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