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Amendments Nos. 95 and
96 reflect similar provisions in Clause 43(5), and enable an order to
be made by the national authority exempting certain land from the
controls on works in Clause 38. In
17 July 2006 : Column 1012
On Amendments Nos. 102 and 133, Section 31 of the Commons Act 1876 requires anyone intending to enclose or approve part of a common to publish that intention in a prescribed way at least three months before so that commoners or others can object. This protection was superseded by Section 194 of the Law of Property Act 1925. Any action that would be sufficient to constitute an enclosure or approval would certainly impede the commoners’ access over the land in question, and would therefore require consent from the Secretary of State under Section 194. We know of no case where the action required by Section 31 of the 1876 Act has been taken. Equally, when Part 3 replaces Section 194, it will require consent for works that impede the access of commoners or indeed anyone else over the land. That is why we are repealing these three measures.
Moved, That the House do agree with the Commons in their Amendments Nos. 80 to 85.
Baroness Byford: My Lords, I thank the Minister for his explanation. I shall ask him about one part of it. I still have a concern about Clause 38(1) in that the amendments do not provide for the freedom of a landowner to carry out works on land with rights of common attached without the Secretary of State’s consent—I shall come to the issue of landowners and owners with rights of common in a minute. I fully acknowledge that both types of owner have a separate right of freehold that must be respected. My concern is that where a landowner wants to carry out reparation work on his land—that is, common land—but the rights of the common holders are inactive, he will be as good as prevented from doing that work unless he can get the Secretary of State to take time to assess his case, by which time it may be too late to undertake the remedial work. Can the Minister reassure me that, where this might happen, there is at the very least a quick and effective way of ensuring that landowners are not restricted from carrying out that necessary work where it does not conflict with the exercising of rights of common?
Lord Rooker: My Lords, I can confirm that. I shall put another couple of paragraphs on the record, which may help the noble Baroness. Amendment No. 81 amends Clause 38(6)(b), which provides that works do not need consent under Clause 38 if the works are carried out under a,
Several
criteria need to be met. The works must be carried out under a power.
It is not enough that they
17 July 2006 : Column 1013
The enactment must apply to common land. Again, the power to construct a cattle-grid on common land qualifies. However, by way of a contrary example, the power to widen a highway in Section 71 of the Highways Act, which makes no special mention of common land, could not be exercised over common land without seeking consent to the proposed works under Clause 38, or otherwise by powers of compulsory purchase.
This provision is intended to replicate the same exemption currently available under Section 194 of the Law of Property Act. The remedial works do not require consent if they are pure maintenance or do not interfere with access. I hope that that gives greater clarification to the amendments for the noble Baroness.
On Question, Motion agreed to.
Lord Rooker: My Lords, I beg to move that the House agrees with the Commons in the said amendment. As already discussed, Clause 39 allows the national authority to grant consent for works on common land, subject to specific modifications or conditions. As amended by Amendment No. 85, the clause allows the person carrying out the works to apply to vary or revoke any such modification or condition. The amendment would enable regulations to set a time limit for making such an application. We do not intend this clause to provide an indefinite opportunity for challenging the national authority’s determination. It is important to achieve clarity as soon as possible about the terms on which a consent is given. We plan to make regulations allowing six weeks for an application to be made, which is in line with statutory precedents in cases of this type. That will bring to an end promptly any uncertainty about the terms of a consent, so it is highly desirable. If the consent holder is unhappy about consent terms, he should challenge at outset, not later on. If further works were proposed beyond the scope of the existing consent, a fresh application for consent would be needed.
I have notes on Amendment No. 86A which of course I will not move or speak to. However, I will have to resist it in due course.
Moved, That the House do agree with the Commons in their Amendment No. 86.—(Lord Rooker.)
17 July 2006 : Column 1014
Lord Livsey of Talgarth moved, as an amendment to Commons Amendment No. 86, Amendment No. 86A?:
The noble Lord said: My Lords, the amendment would ensure that works do not occur at the last minute, although the Minister went some way to ensure that that does not happen. Those of us who have watched works commence, followed by inactivity for great lengths of time, have been extremely frustrated by that. If a timetable had to be submitted when the application for the original consent was made, perhaps that problem could be overcome. This is our only amendment to the entire Bill and it would ensure that the procedure would be a bit more businesslike. I beg to move.
Lord Rooker: My Lords, the amendment would change the formulation in Amendment No. 86 so that regulations would specify the timetable. We understand the aim of the amendment, which reflects points made by the noble Lord and others in Grand Committee, but I will simply reiterate what was said by my noble friend Lord Bach. Currently, there is no formal timetable for determining applications under Section 194 of the Law of Property Act 1925 which the new Part 3 consent regime will replace. A key determinant of actual time taken is the time third parties take to respond when we ask for information, such as details missing from the application. It is not simply a matter of how long it takes the national authority’s part of the process to be completed. Equally, an important part of each application is consultation with other parties, which does take time. We need to allow a reasonable period for comment. People with a potential interest may be busy—they could be commoners lambing or local residents busy at work, as well as other reasons.
However, we accept that at times the process can become unduly protracted. We will streamline it and ensure that it is proportionate to the potential impact of the proposed works to drive down the length of time it typically takes to secure consent. We will consult in detail about how best to achieve this. We are cautious about adopting fixed timetables, but if we decide that it is appropriate for regulations to use this approach, that is already possible under the provisions of Clause 40(2).
This response is meant to be reassuring to the noble Lord, while at the same time not being overly prescriptive.
Lord Livsey of Talgarth: My Lords, I thank the Minister for that response, although I anticipated that he would say that this can be sorted out in regulations. It is desirable that the process should be at least a degree more finite than it has been in the past. I think the Minister quoted an Act from 1922 or 1925. That is quite some time ago and the world has moved on. Perhaps he will take account of what I said in ensuring that this is taken care of in regulations. I therefore wish to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
17 July 2006 : Column 1015
- 88: Page 23, line 43,
leave out “to remove the works and restore” and insert
“for removal of the works and restoration
of”
- 89: Page 24,
line 3, leave out “to carry out the works” and insert
“for the works to be carried
out”
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 87 to 89.
Moved accordingly, and, on Question, Motion agreed to.
- 91: Page
24, line 11, after “Metropolitan Commons Act 1866 (c.
122)” insert “which is in force at the commencement of
this section”
- 93: Page
24, line 20, at end insert “and of any owner of the land (if not
the person carrying out the
works)”
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 90 to 94. I shall speak also to Amendments Nos. 103 to 105 and 134 to 135. Amendments Nos. 90 to 94 relate to Clause 42, which tackles the difficulty that some statutory management schemes on commons effectively prohibit certain works even if they are of a type that the national authority might otherwise consider authorising. Clause 42(3) removes such a prohibition if the national authority gives its consent to the works.
On reflection, we concluded that this change potentially disadvantages the landowner because such works, in theory at least, could still go ahead even if the owner is opposed to them. We think it only fair that the owner should have a right of veto on new works that are currently prohibited under a scheme. Government Amendments Nos. 93 and 94 give effect to this principle while allowing regulations to prescribe the deemed consent procedure. It is also worth saying that if the owner cannot be traced or raises no objections within the prescribed period, the council will be able to proceed on the basis of national authority consent for the works.
Government Amendments Nos. 90 to 92 also make it clear that Clause 42 has effect only where schemes were in force on the date of its commencement. Our intention is that any new schemes made after the clause comes into force should be freestanding and have effect according to their own terms.
Government Amendment No.
103 is a new clause amending the Commons Act 1899. That Act gives local
authorities power to make schemes of management over particular
commons. These amendments update this power, making it fit for
17 July 2006 : Column 1016
Amendment No. 104 repeals Section 68 of the Countryside and Rights of Way Act in line with the debate in the other place. Section 68 was enacted to deal with a problem that had arisen through case law for householders who access their homes by vehicles over areas such as commons or greens. Section 68 has now become redundant and repealing it will avoid any mistaken impression that the section has a residual role. We consulted publicly about this and we will publish a report in due course on our website about the findings of that consultation.
Amendments Nos. 134 and 135 are consequential on Amendments Nos. 103 and 104.
Moved, That the House do agree with the Commons in their Amendments Nos. 90 to 94.—(Lord Rooker.)
3.45 pm
Baroness Byford: My Lords, perhaps I may take a little time to question the Minister further on Amendment No. 104, which deals with the repeal of Section 68. I have been contacted about this over the weekend and I shall try to explain in simple language—it is a very complex matter—where I think we stand.
I am sure that noble Lords will be aware that we spent a great deal of time debating Section 68 of CROW in 2000, when the issue was brought up late in the proceedings in your Lordships’ House and was included in the Bill. Section 68 provided for regulations to be passed to deal with the practical problems created by the judgment in the Hanning case. In effect, Section 68 gave householders the option to pay a fee for a statutory easement to the owner of the common land so that they would be legally entitled to a right of way to their home. If they did not pay the fee, they would not be granted the easement.
This position was consistently government policy between at least 2000 and 2002. On 11 October 2000, the noble Lord, Lord McIntosh of Haringey, stated that the Government had,
- “been at pains
to point out that it would not be right for the property owner to pay
nothing to secure an undoubtedly valuable
right”.—[Official Report, 11/10/00; col.
432.]
On 1 July 2002, the then Minister, the noble Lord, Lord Whitty, stated:
- “It has
therefore always been our intention that landowners should receive some
compensation in return for rights coming into existence by statute over
their land”.—[Official Report, 1/7/02; col.
75.]
However, since the
enactment of CROW, the judgment of Bakewell Management Limited v
Brandwood and others has driven a coach and horses through the policy
expressed in Section 68. It has been brought to my attention that in
the Bakewell case a judicial committee of the House of Lords may have
approached the issue without due regard to the
17 July 2006 : Column 1017
So rather than setting itself the task of judgment based on government policy, the committee in Bakewell asked itself whether 20 years’ criminal driving should be rewarded by nothing at all, as in Hanning, or be a free easement. It has been suggested to me that it should have asked itself, given the Government’s policy, as agreed in Parliament, that 20 years’ criminal driving over a common is never to be rewarded by a free easement, whether it is open to the courts to effect a judicial repeal of that and hold that it is always to be rewarded by free easement.
I accept that this is a very complex issue. I have struggled with it over the weekend and should like to go a little further. I understand that the Judicial Committee of your Lordships' House has held that landowners who have driven criminally over the common for at least 20 years are entitled to a free easement in common law. Are those who have paid for the easements under the statutory provision in Section 68 and the 2002 regulations now entitled to a refund from the owner of that common? That could be a private individual or a charity. Where does that leave them?
If Section 68 is repealed, as we are suggesting, will those who have paid for an easement be entitled to a refund? What effect will that have on those who received payment and spent some or all of it in good faith? This stands to affect commons across the country, notably the Horsell common near Woking, which is vested in charity trustees.
Finally, it has come to my attention that the respondents to the consultation document to which the Minister referred had been given an assurance that his representations regarding these issues within Section 68 would be considered by parliamentary counsel. Yet in subsequent responses from Defra, there has been no confirmation that these representations were passed on to parliamentary counsel. That could have saved noble Lords much time this afternoon. I am looking to the Minister for clarification. If he is not able to provide it, because we are at the end of the Bill, perhaps he could write to me.
Lord Rooker: My Lords, not only are we at the end of the Bill, but I do not think I am in a position to query the judgment of the Judicial Committee of your Lordships' House and neither is any other court, as far as I am aware. However, I have some further comments that I hope will clarify the situation.
Until 1993, the legal
assumption was that where people had driven to their homes over such
areas as commons or greens for at least 20 years as of right, they had
established by prescription a legal right to continue doing so. In 1993
the judgment of the Court of Appeal in Hanning v Top Deck Travel held
that this was not so. It ruled that national statutory bans on driving
across such areas without lawful authority, which were introduced in
1925 and 1930, meant that
17 July 2006 : Column 1018
Faced with this completely unacceptable situation, Parliament enacted Section 68 very late in the passage of the Countryside and Rights of Way Bill, as it was then, to allow regulations to cap the payments that had to be made in this situation. However, what the courts can take away they can sometimes give back. As the noble Baroness said, the Judicial Committee of your Lordships' House came to the rescue of homeowners in 2004, when it overruled the Hanning judgment in the Bakewell Management case. This confirmed that in circumstances where it would have been lawful for the owner of land to grant permission for the vehicle access, there is no bar on householders relying on their actual use without such permission to show that a prescriptive right of access has been earned. That has removed the need for Section 68, which we would never have enacted in the first place but for the decision in Hanning.
The noble Baroness spoke about people who have paid fees to get access to their home. It is unfortunate that the error in case law has caused this to happen. The biggest losers were those who paid out before Section 68 imposed the ceiling on the payment that could be sought in return for the right. Those who paid out under Section 68 would have had to pay very much more to secure the same easement by non-statutory means. There is no proposal for a refund in this legislation.
The noble Baroness referred to my noble friend Lord McIntosh. What he said was based on the presumption, correct at that time, that no right to drive over a common could be acquired in common law. In the light of the Bakewell Management judgment, that presumption was mistaken and the noble Lord’s statement was therefore inoperative.
Baroness Byford: My Lords, I am not sure whether I am allowed simply to thank the Minister for explaining that. We were merely seeking clarification.
On Question, Motion agreed to.
(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.”
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 95 and 96.
Moved accordingly, and, on Question, Motion agreed to.
17 July 2006 : Column 1019
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 97 to 99.
Noble Lords will recall from earlier debates that the National Trust had some concerns about the impact of the Bill on its interests. We gave various assurances in both Houses, and directly to the trust, that substantially resolved its initial concerns. However, one particular issue was still troubling the National Trust while the Bill was in the other place, and Amendments Nos. 97 to 99 responded to that.
The trust argued that the power we were taking in Clause 44 to amend works provisions in local Acts was simply too broad, and could allow us to interfere unduly in the powers available to an organisation such as itself that had promoted its own legislation. On reflection, we agreed with this point and amended the Bill to limit the scope of the power. The amendments make it clear that apart from giving effect to Schedule 4, the sole purpose of Clause 44 is to enable any existing consent criteria or procedures for works done under local or personal legislation, or under provisional order confirmation Acts, to be made consistent with the criteria and procedures set out in Part 3. I understand that as a result of these amendments, the trust is content that its interests will not be prejudiced.
Moved, That the House do agree with the Commons in their Amendments Nos. 97 to 99.—(Lord Rooker.)
Baroness
Byford: My Lords, I thank the Minister for
explaining the amendments. I am glad to have them in the Bill, as I
raised this matter on the second day in Committee. The National Trust
had stated the real importance of ensuring that the powers under Clause
16 to alter local legislation did not affect the
17 July 2006 : Column 1020
Lord Livsey of Talgarth: My Lords, a number of points were made from these Benches on this matter, too. We welcome the explanation that the Minister has given and are well satisfied by it.
On Question, Motion agreed to.
“Notice of inclosure- (1) Section 31
of the Commons Act 1876 (c. 56) (three months’ notice of claim
to inclose to be given in local papers) shall cease to have
effect.
- (2) In section 3 of
the Metropolitan Commons Act 1878 (c. 71), for “Sections thirty
and thirty-one” substitute “Section
30”.”
- “(1) A
council is to make and approve a scheme under this Part of this Act in
the prescribed manner.”;
- (1) A scheme under
this Part of this Act for any common may, in prescribed circumstances,
be amended in the prescribed manner.
17 July 2006 : Column 1021
- (2) A scheme under this Part of this Act
for any common may, where a new scheme is made under this Part of this
Act for the whole of that common, be revoked in the prescribed
manner.”
- (1) A council
which has made a scheme under this Part of this Act in relation to any
common may make byelaws for the prevention of nuisances and the
preservation of order on the common.
- (2) Sections 236 to 238 of the Local
Government Act 1972 (which relate to the procedure for making byelaws,
authorise byelaws to impose fines not exceeding level 2 on the standard
scale, and provide for the proof of byelaws in legal proceedings) apply
to all byelaws under this
section.””
- 106:
Clause 58, page 31, line 6, leave out “association” in
both places it occurs and insert
“council”
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 100 to 106.
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 Amendment No. 107. This is the standard privilege amendment that was inserted in the Bill when it went to the other place.
Moved, That the House do agree with the Commons in their Amendment No. 107.—(Lord Rooker.)
On Question, Motion agreed to.
4 pm
Lord Rooker: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 108.
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 Amendment No. 109. I will speak also to Amendments Nos. 113 and 115 to 118.
Amendment No. 109 deals
with a small flaw in the drafting of Schedule 1. Amendment No. 113
responds to a point raised by the noble Duke, the Duke of Montrose, and
the noble Lord, Lord Tyler, at Third Reading. There was concern that
Dartmoor Commoners Council, established under the Dartmoor Commons Act
1985, would have less power than a statutory commons council for the
purposes of Schedule 1. We agreed with that view, and Amendment No. 113
will
17 July 2006 : Column 1022
Amendments Nos. 116 to 118 revisit the provision in Schedule 1(3) about the permanent severance of rights of common. Our starting position is that most grazing rights would never have been severable were it not for the unintended effect of registration under the Commons Registration Act 1965. Clause 9 reinstates the general prohibition on severance, but Schedule 1 gives effect to some exceptions. As the House will recall, at Third Reading we responded to calls from the noble Lord, Lord Inglewood, and others to introduce a power for the national authority to enable permanent severance on a designated common by order. In moving the amendment, the noble Lord, Lord Bach, said that the powers were,
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