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Lord Whitty: As regards Amendment No. 31, we recognise that some concerns arise from the potential deregistration of common land. For example, research undertaken by the Countryside Agency shows that over three-quarters of the common land in England--and almost 90 per cent of the land in the south-east--has no rights of common at all or only a single right of common registered over it. In those circumstances, there is clearly a potential threat of deregistration.

However, even where land is deregistered, about 85 per cent of existing registered common land will still fall to be classified as access land because it falls into the category of mountain, moor, heath or down. Therefore, access would be safeguarded. Much of the rest of it, the other 15 per cent, is likely to be in public or institutional ownership.

Therefore the problem is smaller than was suggested by the noble Baroness. We are addressing the problem in a different context; namely, through the consultation paper to which I referred earlier--Greater Protection and Better Management of Common Land in England and Wales. That proposes that in future it should not be possible to deregister common land if the right of common had been extinguished. Given the relatively small number of instances which are likely to arise, it is better to consider the matter in the broader context of future management of common land rather than within this Bill. Therefore, I am not persuaded at this point that we should give any commitment to future legislation nor to bring forward any amendments to the Bill.

As regards the amendments moved by the noble Baroness, Lady Fookes, although she said that Amendments Nos. 152 and 154 are paving amendments, they raise in themselves a matter of principle in that they would require maps of open country to reflect the open country at the date of Royal Assent, whereas the Bill requires the countryside bodies to map open countryside on the basis of its status at the time the map is surveyed and completed.

There would be a problem were we to adopt the approach of the noble Baroness. It is not really a practicable proposition to map the land on an historic basis. The countryside bodies which are to do that work over the next two or three years have no way of knowing what precise use was made of the land at the exact point of Royal Assent. Therefore, it would be difficult for them to assess the state of the land as it was. They can only do that at the point at which they survey it. Any formula which attempts to ascertain the nature of the land on an historic basis is subject to all sorts of uncertainties and would probably lead to unfairness as well as impracticality.

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The noble Baroness's key amendment is Amendment No. 190. I am not sure that I can comment on the particular case which she raised. But I do not necessarily accept that a general provision effectively freezing maps of open countryside for the future is the way to address that problem. Clause 10 requires reviews to be undertaken at least every 10 years. The amendment would mean that land could not be removed from maps unless a development had taken place for which planning consent had been given or deemed. At the same time, it would remove the scope for new land to be added to the access maps unless the owner had given his consent.

However, new open countryside may be created by active management of the land, often with conservation-oriented objectives, and existing open country may be lost through development, improvement, natural changes and so forth. We believe that such changes should, in due course, be reflected in maps of open country and not be frozen at their original point.

The review will also allow the countryside bodies to include on maps land which was incorrectly omitted when the maps were first issued. We do not think it right for landowners to be able to veto the mapping of such land, any more than they should have a right to veto it when the maps of open countryside are first drawn up.

We therefore do not think that this is the best way to deal with difficult local situations. Such situations would be best dealt with by local solutions and advice to the countryside agencies reflecting those local concerns. A general freezing does not seem to me to be the solution. I therefore hope that when we come to it, the amendment will not be pressed, and that the noble Baroness will also not pursue her amendment.

Baroness Fookes: I accept what the Minister says. However, I should be happier about withdrawing my amendment later if he could offer me a solution better than the one I proposed, but I did not seem to hear that.

Lord Whitty: If the Countryside Agency proposes changes at a later stage, it will still have to go through the process of consulting local access fora, and therefore all those interested in the situation, such as the noble Baroness described in the South Downs. Many localised issues could then be addressed in that context rather than by a provision which would freeze the totality at a particular point in time.

Baroness Miller of Chilthorne Domer: The Minister's reply that possibly only 15 per cent is at risk, or if we take the institutional ownership, 10 per cent, is not reassuring. A loss of 10 per cent of commons could be worrying. However, I should like to conduct further research between now and Report to see how concentrated that 10 per cent is geographically. If it mostly falls within one area, that would be a serious issue to which I should wish to return. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 32 not moved.]

The Earl of Caithness moved Amendment No. 33:

    Page 2, line 21, at end insert--

("(3) It shall be the duty of the appropriate countryside body to set out clear definitions of moor, heath and down.").

The noble Earl said: I rise to move Amendment No. 33 tabled in my name. Members of the Committee will recall that on Amendments Nos. 16 and 26 the noble Lord, Lord Whitty, talked about definitions of "downland" but did not give us any. Members of the Committee will be well aware that there are not any in the Bill. This lack of definition of moor, heath and down, and the omission of any burden on any authority to come up with a common definition, are major flaws in this legislation.

The Bill relies on accurate definitions based on specialist knowledge which can be applied consistently to all parts of the country. As yet, there is no provision for that. From the landowner's point of view, the current provisions in the Bill will cause great uncertainty. From the visitor's point of view, the inevitable wrangling over definitions and appeals will unnecessarily delay their access on to the land. The amendment aims to end uncertainty by giving the responsibility for the definition to a single body and to ensure that the definition used to decide which land is eligible under the provisions of the Bill is common to the whole country.

I would hope that the body with the responsibility to provide a definition would use the expertise of professionals to decide one. Not every access authority will have access to the necessary specialist skills to define land in a way which is quantifiable and accurate. Left to their own devices, not every authority would produce the same definitions. The Government have recently been dogged with accusations about the health service: that the current system works better for people under some authorities than others. The Bill, as it stands, would create a similar situation. We might see land that would be excluded under some access authorities included in the maps produced by others. The amendment is designed to prevent that. Our earlier discussions reminded me of the consultation paper that the Government issued preceding this Bill. That indicated that the definition of,

    "moor, heath and down",

was to be classified by reference to vegetation. None of those references is carried forward in the Bill to guide either the countryside bodies or the Secretary of State in handling appeals. Can the noble Lord, Lord Whitty, say why, when it was in the consultation paper, it is not in the Bill?

There are specific problems in the case of moor, which may not only refer to heather-covered ground, but also in some parts of the country to low-lying marshes. The Oxford English Dictionary, in the second edition, provides several definitions, including,

    "a tract of unenclosed wasteground, usually uncultivated, covered in heather; a heath";


    "a tract of ground strictly preserved for shooting".

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Another definition is "a marsh". It also offers a specific meaning in Cornwall as,

    "a waste where tin is found".

In any case, it appears from the original consultation paper--a vegetation-based definition--that downland can be limestone as well as chalk, thus it includes the Mendips, the Cotswolds and the wolds, as well as the downs. The noble Viscount, Lord Bledisloe, spoke of that and was disturbed at the width of that definition, although the noble Lord, Lord Greaves, welcomed it. Again, the Oxford English Dictionary offers definitions including,

    "an open expanse of elevated land specifically in the plural; the treeless, undulating chalk uplands of the South and South-East of England serving chiefly for pasturage; or a sandhill".

Finally--again a point picked up by the noble Viscount, Lord Bledisloe--the term "open country" appears to be a misnomer since there is nothing in the definitions provided which excludes enclosed land. For example, downland could be enclosed and used in supporting an equestrian enterprise but still be within either the dictionary definition of "down" or the definition used in the consultation paper. That may be less relevant to policy makers, appeals and the court; but it clearly does not help the public understand to which land they are being given access and which land is being excluded from the right of access.

Finally, if vegetation-based definitions are used, it is possible for land to move in and out of the right of access, subject to the procedure for revision of mapping, according to changes in its use over time. I believe that the importance of definitions at this stage strikes at the very heart of the Bill and it is important that we get this right at this stage so we get greater clarity. That is why there should be a duty on the authority to make definitions after consultation. I beg to move.

10.15 p.m.

Viscount Bledisloe: I apologise for coming back to the point of definition, but I agree with the noble Earl, Lord Caithness, that this is crucial.

Perhaps I may seek to make the point which I did not succeed in making earlier in relation to the definition of "open country" in Clause 1(2) of the Bill. That says that,

    "open country means land which appears to consist wholly or predominantly of mountain, moor, heath or down".

That is the same as saying that access land includes all land which consists wholly or predominantly of mountain, moor, heath or down, whether or not it is open. That can be extremely dangerous. I do not believe it is intended, but it is what is said.

Earlier speakers appear to have considered that the absence of a definition gives the authority a wide discretion as to whether it labels specific land as access land. But that is wrong. The map maker has a duty to include in his map all land which is wholly or predominantly mountain, moor, heath or down, and has no power to include land which is not.

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If there were a challenge, the court would have to decide what was meant by a down. It must either say that the map maker had made a mistake by including something that was not a down or by failing to include something which even though not open was in fact a down. It seems to me that without a definition, and without an overriding provision whether or not something is a down--it does not count as open country unless it is open--there are likely to be serious problems.

I do not know whether the solution propounded by the noble Earl is ideal but I would like an assurance from the Government that the problem of the definition will be cleared up at the Report stage.

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