Lords Hansard text for 17 Jul 200617 July 2006 (pt 0971)

Business

3.03 pm

Lord Grocott: My Lords, with the leave of the House, my noble friend Lord Triesman will repeat a Statement later this afternoon on developments in the Middle East. We shall take the Statement immediately following consideration of Commons amendments to the Commons Bill.

Emergency Workers (Obstruction) Bill

Brought from the Commons; read a first time, and ordered to be printed.

Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006

Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson): My Lords, I beg to move the two Motions standing in my name on the Order Paper.

Moved, That the draft regulations laid before the House on 5 June be approved [29th Report from the Joint Committee] [Considered in Grand Committee on 4 July].—(Lord Drayson.)

On Question, Motion agreed to.

17 July 2006 : Column 1002

Procedure of the House: Select Committee Report

3.04 pm

The Chairman of Committees (Lord Brabazon of Tara) rose to move, That the fifth report from the Select Committee be agreed to.

The report can be found at http://www.publications.parliament.uk/pa/ld200506/ldselect/ldprohse/197/19703.htm

The noble Lord said: My Lords, Members have expressed a wish for the Minutes of Proceedings to be more helpful, both on paper and online. We have responded with a new design to appear in the new Session. I hope it will be welcome.

I should draw attention to one aspect. From the new Session, Starred Questions will be renamed “Oral Questions” and Unstarred Questions will be renamed “Questions for Short Debate”. We believe that that will be clearer to Members and to the public. Oral Questions will continue to be identified with a star on the Order Paper. None of the changes proposed has any effect on procedure. I beg to move.

Moved, That the fifth report from the Select Committee be agreed to.—(The Chairman of Committees.)

Viscount Montgomery of Alamein: My Lords, while commending the committee for the decision to change Unstarred Questions into Questions for Short Debate, is there any reason why those short debates should not be tabled as Motions rather than Questions, because they are short debates? Furthermore, as those debates take place over one or one and a half hours, either in the dinner break or after other business, and as there is a long waiting list, would it be possible to consider having an occasional day set aside when we might have six or seven?

Lord Foulkes of Cumnock: My Lords, if there is any spare time left at the end of the 30 minutes, could we give way to Members who wanted to speak on previous Questions?

The Chairman of Committees: My Lords, the suggestion made by my noble friend Lord Foulkes of Cumnock would be a matter for the Procedure Committee at some date way in the future.

On the question of the noble Viscount, Lord Montgomery, the proposal is merely to change the name of Unstarred Questions to Questions for Short Debate. As I said, an Unstarred Question is a fairly opaque term for some Members of the House and for those outside. Turning Unstarred Questions into “Motions for Debate” has many complications and implications: not only would a right of reply be given, but their place in the Order Paper would change, they would become amendable and divisible and their relationship to other forms of Motion would need to be considered. It would be possible for the Procedure Committee to consider those matters, but I would advise against it.

On Question, Motion agreed to.

17 July 2006 : Column 1003

International Development (Reporting and Transparency) Bill

3.07 pm

Baroness Whitaker: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

Moved, That the order of commitment be discharged.—(Baroness Whitaker.)

On Question, Motion agreed to.

Piped Music and Showing of Television Programmes Bill [HL]

Read a third time, and passed, and sent to the Commons.

Commons Bill [HL]

3.08 pm

The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker): My Lords, I beg to move that the Commons amendments be now considered.

Moved accordingly, and, on Question, Motion agreed to.

commons amendments

[The page and line references are to Bill 115 as first printed for the Commons.]

Lord Rooker: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 1 to 4. Amendment No. 1 is consequential because of amendments to Schedule 2, to which we shall turn later. It has no immediate effect on the exempted commons, but we shall ensure that exempted commons may be brought into the registers under Schedule 2 and so help to ensure that registers of what is and is not common land are comprehensive.

Amendments Nos. 2 to 4 and 13 are minor amendments to clarify references to “land” in Part 1. Amendment No. 14 is minor and technical. Amendment No. 15 enables registers to be updated to take account of natural variations in the boundary alongside rivers, lakes and tidal waters. Amendment No. 16 clarifies powers to correct mistakes in the register under Clause 19.

Amendment No. 18 clarifies applications under various provisions in Part 1. Amendment No. 20 relates to the power in Clause 24 to make regulations

17 July 2006 : Column 1004

about applications under Part 1. Subsection (7)(a) already enables regulations to make provision for appointment of persons from a panel to deal with particular applications.

Moved, That the House do agree with the Commons in their Amendments Nos. 1 to 4.—(Lord Rooker.)

On Question, Motion agreed to.

(a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;(b) they ceased to do so before the commencement of this section; and(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b).

(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(c) the land-(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.”

Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 to 12. Amendments Nos. 5 and 8 to 12 respond to concerns raised by the noble Baroness, Lady Byford, at Third Reading that land on which houses had recently been built might nevertheless meet the criteria for registration as a green under Clause 15. The situation might arise if land had already been used by local inhabitants, as of right, for lawful sports and pastimes for at least 20 years but development then took place.

We amended the Bill in another place to deal with this point, but colleagues in another place then

17 July 2006 : Column 1005

argued that it was also necessary to rule out registration of land that is still to be developed under a significant building project that has already begun. Again we listened, and although we have not been given any real-life examples these amendments deal with those concerns. If construction works had begun before the date in Amendment No. 10—23 June 2006, when we tabled it—it would not be possible to register any part of the land where works under the same planning permission would in due course make the land unusable for public recreation. We intend “construction works” to mean actual building works, not initial site-preparation works such as perimeter fencing, site clearance or levelling, waste removal or exploratory work. It will be for the authorities and courts to decide, based on the particular circumstances of each case.

The amendments are a substantial change from where we started. They are an even bigger departure from the old principles of customary law on which the greens registration law was based. They would more likely have made the development unlawful than protect it, so is a good example of flexibility to change the Bill to address practical difficulties.

Amendments Nos. 6 and 7 respond to a recent House of Lords judgment on the Trap Grounds case, which considered the effect of the words originally used in the Bill to describe the type of inhabitants whose use of land might warrant its registration as a green. The original words, taken directly from the current definition in the Commons Registration Act 1965, were,

The noble and learned Lord, Lord Hoffmann, spelt out in Trap Grounds that “within a locality” should be taken, if appropriate, to mean “within a locality or localities”, therefore resolving an earlier concern on this which had led to an amendment in this House to simplify the wording to refer instead just to “local inhabitants”. The doubts are now resolved about original formulation, so we need to revert to it to ensure that the intended meaning is clearly understood.

Moved, That the House do agree with the Commons in their Amendments Nos. 5 to 12.—(Lord Rooker.)

Baroness Byford: My Lords, I thank the Minister for introducing this batch of amendments. Taking them in reverse order, we had a long debate about “rural inhabitants”, which was the crux of the matter at that stage. I am happy to accept the wording before us today, which will include urban inhabitants locally as much as rural inhabitants. I am grateful for that.

In another place, my honourable friend Jim Paice raised the issue covered in Amendment No. 10, and the wording we have before us should cover his concerns. It would have been a shame not to have clarified how far a development must have gone to be established as a development. I am grateful to the Minister for his explanation of these amendments and we are happy to support them.

17 July 2006 : Column 1006

Lord Livsey of Talgarth: My Lords, we are also happy with these amendments, particularly those relating to the definition of local inhabitants and inserting,

We are satisfied with that wording and thank the Minister for bringing these amendments forward.

On Question, Motion agreed to.

3.15 pm

“(aa) the replacement land must be land to which this Part applies;”

“(e) updating any entry in the register relating to land registered as common land or as a town or village green to take account of accretion or diluvion.”

Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 to 16.

Moved accordingly, and, on Question, Motion agreed to.

“(ba) paragraph 1A or 1B of Schedule 2”

Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17. In moving this Motion, I shall speak also to Amendments Nos. 19 and 119 to 131. Amendment No. 17 is essentially a consequential amendment to Amendment No. 119, which enables additions to the register of land which Parliament has recognised as common land or town or village greens, but which was not registered under the Commons Registration Act 1965. It responds to amendments tabled in Standing Committee in the other place. It also enables the registration of land which was statutorily allotted as recreation grounds under 19th-century enclosure awards.

Amendments Nos. 124 and 128 provide alternative mechanisms to enable the deregistration of buildings and the curtilage of buildings where those buildings were present before the land was registered under 1965 Act. Amendments Nos. 19, 120 to 123, 125 to 127 and 129 to 131 enable changes to the register under Schedule 2 on initiative of the commons registration authority, rather than in response to an application.

Moved, That the House do agree with the Commons in their Amendment No. 17.—(Lord Rooker.)

On Question, Motion agreed to.

“( ) An application made for the purposes of any of- (a) sections 6, 7, 10, 11, 12, 13 and 15, and(b) paragraph 1 or 3 of Schedule 1,

17 July 2006 : Column 1007

Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18 to 20.

Moved accordingly, and, on Question, Motion agreed to.

Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 21 to 26. I shall speak to them and to Amendments Nos. 28 to 79, 100 and 101, 106, 108, 110 to 112, 114 and 132. These amendments change the name of commons associations to commons councils. There is widespread support from stakeholders for this change and there were calls for it from all parts of both Houses. There could not be a better reason.

Moved, That the House do agree with the Commons in their Amendments Nos. 21 to 26.—(Lord Rooker.)

Baroness Byford: My Lords, I am grateful to the Minister for coming back on this matter. We had long discussions on it at earlier stages of the Bill, but it was only at Third Reading that the difficulty of commons association was raised in full, so I am very pleased to note the redefinition of the commons “association” to “council”. We welcome that change, as will my noble friend the Duke of Montrose, who raised the matter again at Third Reading.

This issue was originally drawn to our attention by Professor Ian Mercer from the Dartmoor Commoners Council, for which we are grateful. The difficulty was that if the body was an association then members could not be part of it. It is slightly technical and we are very pleased to see the amendment.

Lord Livsey of Talgarth: We too are very grateful. We brought forward an amendment on Third Reading with this in mind. The matter has been clarified by the description as councils. It is a considerable move forward and a tribute to the ministerial team and its advisers that they have seen the wisdom of such a move. Professor Mercer has had practical experience of this on Dartmoor Common, and its application is obviously very wide indeed. We are only slightly concerned that commons associations in accessing councils are able to exercise the powers to obtain, for example, agri-environment grants and so on, but we believe that these amendments ensure that they can. Perhaps the Minister can confirm that.

17 July 2006 : Column 1008

Lord Rooker: I can. I can also say that it was the former ministerial team who should be thanked for all this good work.

On Question, Motion agreed to.

Lord Rooker: My Lords, I beg to move that the House does agree with the Commons in the said amendment. Amendment No. 27 addresses concerns that less weight might be given to representations from commoners actively exercising their rights where they are fewer than those who are not exercising their rights. That led to concern that opposition from inactive commoners might be enough to prevent a council being established.

The views of the people actively exercising rights of common are extremely important as they are able to influence the management of the common, and their livelihoods may be dependent on continued use of the common.

The amendment will require the national authority to attach more weight to the views of active commoners when considering representations from those with common rights. It does not alter the requirement for the national authority also to consider representations from landowners and other interests in the common, nor, indeed, the weighting to be attached to their views compared to commoners’ views. The views expressed by inactive commoners will still be considered during the establishment process; they will just be given less weight than active commoners.

Moved, That the House do agree with the Commons in their Amendment No. 27.—(Lord Rooker.)

Lord Livsey of Talgarth: My Lords, some members of the commons associations will be disappointed that this amendment is being rejected as there is cohesion among active commoners on how matters can be considered, especially in establishing new commons councils.

The noble Lord, Lord Williams of Elvel, is unable to be here this afternoon, but wishes to point out that the functions of the Welsh Assembly in this are important. I agree with him, particularly as regards the views of active commoners.

The Minister has given reasons for the decision. I hope that I have understood it correctly. I am slightly disappointed that the views of active commoners cannot be taken more into account.

Baroness Byford: My Lords, before I say more, perhaps the Minister could tell us what he said. I thought he said that we were disagreeing, not agreeing with the amendment.

Lord Rooker: My Lords, on Amendment No. 27, I said, “I beg to move that this House agrees with the Commons in the said amendment”.

17 July 2006 : Column 1009

Baroness Farrington of Ribbleton: My Lords, the Minister said “does agree” but it sounded like “disagree”.

Lord Rooker: Oh, it is my accent, my Lords. I am sorry.

Baroness Byford: No, no, my Lords, it is not the Minister’s accent, I just had not quite heard what he said. I think that the noble Lord and I both heard the same and were getting slightly alarmed, because we were going to thank the Government for what they are doing. That puts another emphasis on it.

We raised the issue in Committee and we are very pleased that it will make its way on to the statute book thanks to the efforts of Members in this House and another place. As the Minister told us, the amendment gives greater weight to the views of active commoners, while still taking into account those of inactive commoners. Having clarified that, we are very happy to support it.

Lord Livsey of Talgarth: My Lords, I thank the Minister very much for clarifying the situation. My ear is not quite attuned, but many people from the Midlands come to Wales in August, so by September I might have been able to interpret what he said. We entirely agree that this is an excellent amendment. I think that I have already described why.

On Question, Motion agreed to.

17 July 2006 : Column 1010

Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 28 to 79.

Moved, accordingly and, on Question, Motion agreed to.

Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 80 to 85. I shall speak also Amendments Nos. 87 to 89, 95 and 96, 102 and 103.

On Amendments Nos. 80 to 84, normally, under Clause 38, proposed works that would impede access to or over common land need the prior consent of the national authority. Such works may for example include fencing, building, surfacing or earthworks.

17 July 2006 : Column 1011

Subsection (6)(a) and (b) automatically exempt a particular type of works from that requirement. Amendments Nos. 80 and 81 emphasise that to be exempt in this way, works must be carried out under a power conferred by or under an enactment—for example, those undertaken by a statutory board of conservators.

It was never intended that works achieve such exemption if they are carried out under a landowner’s ordinary powers at common law, just because they happen also to require statutory authority in particular circumstances—such as listed building consent or planning consent. The amendments make that position clear. Amendment No. 83 is consequential.

Amendment No. 82 relates to commons management schemes made under the Metropolitan Commons Act 1866 or the Commons Act 1899. Those schemes allow conservators or district councils to manage commons for public benefit. The amendment makes clear that works under such schemes are exempt from Part 3 consent only if the scheme does not require anyone’s approval for the works. Amendment No. 84 is a technical amendment.

Amendment No. 85 relates to Clause 39(3), which allows the national authority to consent to a works proposal with modifications or conditions. That is an important step forward, because in the past it has sometimes proved necessary for applicants to reapply to get an application into an acceptable form. Where the national authority imposes such modifications or conditions, subsection (5) as drafted would only have let the person to whom the consent is given apply to vary or revoke the modification or condition.

Amendment No. 85 is a technical amendment to make sure that whoever is carrying out or proposing to carry out works for which a consent has been given will be eligible to apply in that way, even if they are not the person to whom the consent was given. This might arise, for example, where the land changes hands after consent is applied for, or just after it is given.

3.30 pm

Amendments Nos. 87 to 89 deal with the contravention of the controls on works in Clause 38, which opens the way to enforcement action through a county court. Under Clause 41(2), county courts will have the discretion to make an order, which they will exercise, as now, according to how serious the consequences of the contravention may be. The county courts may order the removal of the unlawful works and the restoration of the land to its former condition. Where consent was given but the works did not comply with it, the county courts may order compliance with the terms of the consent. The amendments are technical and ensure that any enforcement order can require action by the most appropriate person.

Next Section

Back to Table of Contents

Lords Hansard Home Page