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The question also arises in connection with the maintenance of paths and roads. The north Pennines have a wide network of tracks, some of which get very boggy. On the more heavily used tracks, such as the Pennine way, people divert around the boggy patch and spread the path wider and wider. A farmer may dump some spare stone at that point to create some hard standing and stop the widening of the path, which damages the surrounding landscape, and protect the delicate turf.
All the examples that the House has heard today are important to day-to-day management of the land. At the moment, local farmers have to get consent if they want to put up some fencing, and the procedure is extremely cumbersome. In one case, an application to put up permanent fencing to stop animals straying on to an increasingly busy road went through the whole planning procedure and was eventually determined by a planning inspector in Bristol. That sort of thing takes months. I hope that the Minister will be able to frame regulations under clause 40 to introduce a de minimis criterion so that farmers who do sensible things in the normal course of their activities are not impeded or placed on the wrong side of the law.
Mr.
Llwyd: This is an important debate. We had a similar
debate in Committee, and if nothing is done to amend the clause, the
Bill could come into disrepute. As the clause stands, it will impede
the natural husbandry of common land and, more importantly, it
will pose several problematic legal conundrums. I referred to one in an
intervention in the remarks by the right hon. Member for Penrith and
The Border (David Maclean). Clearly, no farmer could with any
confidence rely on an insurance policy if there was an imminent danger
that he knew of and did nothing about. The example given was to do with
a stone wall that might be on the verge of collapse, but there are many
others, such as to do with disused mine shafts or holes that appear in
bogs, all of which are daily occurrences on the
uplands.
4 pm
The hon. Member for Hexham (Mr. Atkinson) has ingeniously given the Minister what appears to be a lifeline. The point raised is important. In debate in Committee with the Minister’s predecessor—who, I might be so bold as to say, was also a reasonable man—he would not accede on this, which I could not understand because just using the words de minimis without some force behind them does not take us very far. What was said was that the offender could be investigated and taken to court and then the case would be thrown out. That is all well and good, but what about all the time, money and effort that are put into bringing that person to court before it was thrown out because it was de minimis? That is a scandalous way of looking at things. We are making law here; we are making law that will probably last for the next 50, 60 or more years.
I urge the Minister to consider the good sense of the arguments in this case. He has to do something—through regulation, or however else he might do it. Otherwise, there is a potential problem in this part of the Bill, which, as I have said, would bring it into disrepute. That would be a great shame, because I, along with other Members in all parts of the House, commend much of the Bill, but this is a flaw that we will all come to regret, as with the dangerous dogs legislation.
Barry Gardiner: This group of amendments has certainly provoked much very interesting debate and raised important questions that we must grapple with.
Amendment No. 114, tabled by the hon. Member for South-East Cambridgeshire (Mr. Paice), would exempt works on common land from the part 3 consent requirement if they are for the purposes of user safety, animal welfare or conservation, and are either urgent and necessary while a consent application is under consideration or will be on the land for not more than a limited period to be prescribed by regulations. Although I fully understand the aim behind the amendment, it would pre-empt the thorough consideration we wish to give to whether any particular types of works on common land, over and above those already described in clause 38(6), should be exempted from the normal requirement for consent under the Bill.
Clause
43 allows us—subject to the negative resolution
procedure—to make such exemptions by order for a range of
specific purposes; essentially, they are use of the land for access,
recreation or sporting purposes, exercise of rights of common, nature
conservation or heritage preservation. These grounds would between them
be likely to embrace most of the practical scenarios that amendment No.
114 would address. In addition, we will have power under clause 40 to
prescribe fast-track procedures for certain types of works or
particular
circumstances, if we conclude that that makes sense. During animal
health crises, there are also emergency powers that may in any event
override the need for consent under the Bill, and there may be other
statutory powers to act in emergencies that would exempt necessary
works from the consent requirement.
We intend to consult fully—I take on board the point of the hon. Member for Hexham (Mr. Atkinson)—about our approach to the use of the exemption power. It is important to be able to draw on a full range of views and experience before we make decisions on this important issue. We have already indicated that any exemptions we make by order under clause 43(1) are likely to relate to works of a minor or temporary character. Beyond that, we do not want to prejudge the issue by including further provision in the Bill about what is to be exempt.
May I just correct an impression that might have been given by the right hon. Member for Penrith and The Border (David Maclean)? There is no question that crimes would be committed. The breach of clause 38 is not an offence; it is a matter for civil enforcement through the civil courts. In the 80-odd years since the enactment of section 194 of the Law of Property Act 1925, there have been no problems with sheep fences—an issue to which one Member referred earlier. Having made those points, I hope that the hon. Member for South-East Cambridgeshire will withdraw his amendment.
Mr. Paice: The Minister thinks that the gist of my amendment is covered in the powers contained in the fast-tracking procedure and in clause 43, which deals with the power to exempt, but can he clarify one point? According to my reading of clause 43(1), the Minister will be able to exempt only
the carrying out by a specified person of specified works on specified land”.
Although subsection (b) widens that to include “any land”, the fact remains that the clause refers to the carrying out of such works
“by a specified person, or a person of a specified description, of works of a specified description”.
Does the Minister really believe that that creates the flexibility to deal with the issues that my hon. Friends and I have been discussing this afternoon? The examples of what are to be exempted are highly specific, rather than general. It is obviously impossible to say who should erect an emergency fence to protect children from falling into a mineshaft, for example, or to specify particular works. If one tried to list the circumstances in which an emergency might arise, one would be bound to miss some because, by their very nature, such circumstances are unforeseeable. My concern is whether the Minister has sufficient flexibility in clause 43 to do what he suggests he could do.
Barry Gardiner: The hon. Gentleman puts a question that is absolutely to the point, and the answer is yes, we do believe that clause 43 will give us the flexibility that we require. But in framing subsequent regulations, we will obviously take very careful note of the view expressed by the House this afternoon, and of the potential pitfalls to which we have been alerted.
Government amendment No. 76
echoes a similar provision in clause 43(5). It enables an order to be
made by the national authority, exempting certain land
from the controls on works in clause 38. An order could be made under
this amendment only in relation to land to which the controls on works
under section 194 of the Law of Property Act 1925—the
predecessor provision to clause 38—have already ceased to apply.
So this amendment and the existing clause 43(5) merely give us the
option to preserve the exemptions that are already in place, and we see
that as entirely
proper.
Generally, section 194 of the 1925 Act applies to land that was subject to rights of common in 1926. Where all rights of common have since been acquired under any statutory power, such as a power of compulsory purchase, section 194 will cease to apply to that land. It is in those circumstances that we would have the discretion to make an order under this amendment.
It will not surprise Members to learn that we have in mind a particular case: Warcop military training area, which is a firing range in Cumbria. The rights of common there were acquired in 2003 following a public inquiry, and the controls on works under section 194 therefore ceased to apply at the same time. There is uncertainty about Warcop’s status, and I share the concern of the Under-Secretary of State for Defence, my hon. Friend the Member for West Bromwich, East (Mr. Watson), that clause 38 could re-impose those controls. Government amendment No. 76 will enable us to address the issue at Warcop. My hon. Friend and I are committed to consulting at a later date—I give that commitment, as my hon. Friend the Member for Sherwood (Paddy Tipping) asked me to do—on how best to address the problem in the light of this amendment, so that there is no interference with the delivery of our armed forces’ training needs. It might help if I add that my Department is not aware of any other site where the circumstances would enable an order to be made using the powers conferred by this amendment.
I turn now to Government amendments Nos. 78 to 80, which deal with the National Trust. The House will recall from earlier debates that the trust was concerned about the impact of the Bill on the National Trust Acts. I have since met Fiona Reynolds, the trust’s chief executive, and am pleased to say that we have been able to reassure the trust that the arrangements for improved management of commons set out in part 2 of the Bill do not represent any practical threat to its excellent management of its very extensive common land holdings.
However, Fiona Reynolds has also pointed out that the power in clause 44(2) to amend local or personal legislation by order
“for the purpose of making provision about works”
may be too broad. The trust is concerned that it would allow such an order to repeal relevant powers taken by it under the National Trust Acts. Of course, that is not our intention, and the amendments that we consider necessary to those Acts are already set out in paragraphs 3 and 4 of schedule 4.
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.
4.15 pm
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.
If the original works were unlawful when originally constructed, the situation is a little more complicated. If they remain unlawful, nothing in the Bill will change that, and maintaining them will require consent as for any other works that 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 retrospective application, and that is set out in clause 39(7).
If
the original works are no longer lawful 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 as it would be needed for other lawful works, if doing so creates
any greater practical impediment 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 that 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—
‘(4A) Where—
(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, in clause 44, line 34, after ‘subsection (2)' insert—
‘“national authority” means—
(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.
4.30 pm
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.
There are hound trails in my
constituency, too. When I attended the Pont ar Elan show a week ago
last Saturday, it was a privilege to see not only hound trails
but also dog racing on the common; but it was taking place with the
express permission of the commoners’ association. Our amendment
would address only activities that were undertaken against the express
will of commoners’ associations, but as I would not want the
Minister’s weekends disturbed by people ringing up to report
informal dog racing, I beg to ask leave to withdraw the
amendment.
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