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Earl Peel: Perhaps I may suggest to my noble friend on the Front Bench that we refer to the high ground rather than the highlands. Otherwise people may think that we are moving into territory over which we have no legislative jurisdiction.
I wonder whether the Minister can help me. To what extent could any request for an extension over and above the 28 days be compromised by how the 28 days was or had been used? For example, let us suppose that a landowner or shooting tenant submitted a request to the access authority for further closure days for shooting purposes because he had used up his 28 days to safeguard his nesting birds from, say, 15th May through to the middle of June. Could the access authority respond to that request by saying, "Well, we don't really approve of the way you've used your 28 days and therefore we shall decline your request for further days"?. That is quite an important point.
Viscount Bledisloe: Perhaps I may put a related question to the Minister that looks at this matter from another angle. Could one apply for a special extension period before the permitted 28 days had all been used? For example, could one say, "I have a large number of nesting birds. Give me a closure order for them. I'll
Lord Whitty: In both those cases, the Countryside Agency may well respond to a request for extra days for shooting by asking why they cannot be accommodated within the 28 days. It is reasonable for the Countryside Agency, where it does not receive a reasonable response, to refuse the application.
As regards the timing, the request does not necessarily have to be sequential, but the Countryside Agency might well pose one or two questions to the applicant. The provisions of Clause 22 set out the detail of how the 28 days are to be used. For that reason, in response to the noble Viscount, the application does not have to be sequential; it can be made at any time.
Lord Luke: I thank the Minister for that interesting reply, which was what I expected to hear. We are probing this whole area and I hope that there may be a possibility of a little more give and take. However, I beg leave to withdraw the amendment.
I do not believe that the closure process--of exclusion and restriction--over a portion of access land will work. It is important that we do not legislate in an impractical way. The issues are as follows. First, how will notification ever be effective and complete? Secondly, what will happen if a closure is violated? Thirdly, what will happen if a commercial activity taking place on a closed day is disrupted? I shall go through each of those questions in slightly more detail.
I foresee considerable difficulties in notifying all access users that access to a particular piece of land has been suspended. Some will not know and some, I fear, will not care. Their presence on the temporarily closed access land would lead to the second issue. If a closure day is violated, can the land manager claim another day in lieu? Violation could disrupt a legitimate business activity, such as the sale of a shooting day. As regards the third issue, will compensation be payable for such disrupted days, some of which would positively harm the rural economy?
I should briefly like to take the opportunity to raise one more related problem; namely, that of unwitnessed damage. The Minister rightly reminded the Committee that witnessed damage could lead to criminal proceedings being brought under existing legislation. But the nature of this beast is that damage is rarely witnessed. How will compensation be made, or will it fall on the land manager's head? At present, the Bill makes no provision for this, so it would appear to fall on the manager. However, my main concern is about the disrupted days. How will the land manager achieve a day in lieu of a disrupted day?
Lord Whitty: I am not entirely clear what the noble Earl means by "disrupted day". Clearly, if someone enters land which is normally access land but has a restriction on it which allows a closure, he or she becomes a trespasser on that day and the law of trespass applies. If they cause criminal damage, then the law of criminal damage applies. That is what happens to either a single person or a group of people.
If the noble Earl is envisaging a situation where a shoot, for example, was disrupted in the sense that it was not possible for the shoot to proceed and therefore a day's shooting was lost, clearly that is a good argument for the land manager or landowner to talk to the Countryside Agency and say, "Can I have another day because this is what happened to one of my 28 days?"
It would not be granted automatically; it would have to be shown that there had been disruption--and "disruption" would mean a loss of the total activity, or something like it, rather than the fact that there was a single trespasser or a few trespassers on the land that day.
Lord Whitty: The noble Lord is entitled to ask me that question, but I cannot give him a straight answer. All applications would be dealt with as speedily as possible and would be subject to the same requirements on the Countryside Agency. I assume that if it were a day of shooting one would need at least a week before one could organise a substitute day.
The Earl of Mar and Kellie: I should like to probe further. I think the Committee now understands that there may be a good case in the event of a disrupted commercial day. I also have in mind a situation where
Lord Whitty: The land manager would clearly be entitled to approach the Countryside Agency--although if I were the Countryside Agency I would not entertain that one for very long. But I would not like to pre-empt its decision.
I failed to respond to the other point made by the noble Earl in terms of notification. Some of this falls within the general discussion about notification and the issue of closures or temporary closures--ad hoc closures, if you like. We have discussed the arrangements that the Countryside Agency hopes to put in place to inform people of restrictions and closures. Clearly, a temporary closure for a few days or a day would need to be communicated as effectively as possible. As mentioned in an earlier debate, there may well be a role for wardens in this respect as well.
The noble Lord said: This group of amendments again refers to permitted closures, but it seeks to make the Bill a little less precise--a change from my tack until now, I confess. It concerns the words "use" and "management". I think that the noble Lord will have little trouble with it.
Defining land management to include "use" would ensure that closures and restrictions could be provided in relation to activities that took place on access land but did not in themselves involve the management of it--for example, shooting, hang-gliding, fell races. It would put beyond doubt the issue of whether shooting per se, as contrasted with heather-burning, pest control or bracken-spraying, amounts to "management". In everyday language, shooting would probably not be considered land management. It might be, if it is undertaken for pest control; it might not. The noble Baroness, Lady Nicol, catches my eye, prompting me that it could possibly be management.
Under the current provisions it will be impossible to close land at weekends for any reason under the discretionary system. Closures at weekends can, therefore, only arise through permission, and only for land management reasons. Commercial enterprises that may be undertaken on access land, such as paintballing or tank driving, would be visitor based and probably more dependent on weekend use than weekdays, and would generate revenue. If these types of enterprises do not fall under the definition of "land management", they will be unable to gain permission to close on the days when it is essential for their economic viability.
Defining "land management" to include "use" would also remove uncertainty as to whether access land could be closed for such uses as hang-gliding, motorcycling events, paintballing and fell running (God forbid!), which take place either regularly under agreement or on an occasional basis.
There is currently no formal right of application in the Bill for owners or occupiers to seek closures or restrictions on conservation grounds. Some conservation bodies may own access land--for example, the RSPB, wildlife trusts, the National Trust--and other private owners may also wish to secure closures or restrictions for the purposes of protecting wildlife. While they may be able to request closures, the lack of a formal right to apply means that there is no corresponding appeal against a refusal to grant an application made under these conditions.
The effect of these provisions is that the case for closures on conservation grounds is given less overall weight than the case for closures for land management in Clause 22; or, indeed, for fire or safety, as set out in Clause 23. This lack of balance should be corrected. The Game Conservancy Trust is also concerned about the issue. It is important that owners should be able to apply for conservation closures; for example, for pest control or conservation purposes.
The amendment would widen the definition of land management under Clause 22 to include closures to conserve important features of the land. The right of application for occupiers to close on nature conservation grounds would then be accompanied by a right to appeal under the provisions relating to the land management closures in Clause 28. If there was a separate right to apply for conservation closures outside Clause 22, it would need a separate right of appeal. Sweeping it up under the existing appeal
However, it may be argued that, although there is no formal right of application for closures on conservation grounds, owners are able at any time to ask the Countryside Agency, the Countryside Council for Wales, or NPAs to exercise their power under Clause 24 to make a direction to close or restrict access. But there is no guarantee that any such request will be properly considered, let alone granted, especially if it comes from an individual owner, as opposed to a wildlife trust. Conservation objectives risk being frustrated if there is no formal right of application for closures or restrictions on conservation grounds. Extending Clause 22 to cover conservation, as well as land management, would provide the necessary right of application to ensure that proper weight is given to conservation objectives on access land.
I turn to Amendment No. 261. Clause 22 needs to provide a more detailed definition of "land management" for the purposes of permitted closures. It is important that the Government make clear what grounds for closures they view as being legitimate. Landowners and managers need to be certain that any enabling powers will be adequate to cover their legitimate needs. I am confident that the Countryside Agency, the Countryside Council for Wales and the national parks agencies will consider seriously their requests for such closures and that they will respond positively to them. Such closures may need to be granted for single days while a specific activity like shooting is under way. They may also be required for groups of several days at a time, such as during military training exercises; and, indeed, they may be required for longer periods where there is a risk to animal or plant health. They may also be required for specific reasons--for example, during the bird nesting season--or all the year round in respect of particularly dangerous land.
The current provision also fails to take into consideration any other use of land for which it would be appropriate to close for a period longer than 28 days. I have in mind activities like hang-gliding, fell races, and so on. Various sports may well have a licence agreement with the owner, in addition to other activities, that the Government may not have considered. Land should be able to be closed by agreement for reasons that are not directly linked to what is normally perceived as land management.
There is no definition of land management. Although the Government have confirmed that shooting would be a legitimate ground for closure, this is not specifically included in the Bill, nor are other land management procedures on access land--for example, the burning of heather, grazing of livestock or pest control. Further clarification is required. There is no advantage in defining what land management means in great detail whether by an inclusive or exclusive list. Flexibility should be retained given the great variation in present (and likely future) forms of land management on the land affected. This amendment aims to accomplish that.
We need to consider who will interpret the measure. Heather burning is a part of prudent land management. It is essential in the interests of nature conservation, as are the shooting of pests and game and gamekeeping practices. The bracken fern is a weed whose range extends world wide. It is difficult to control. I know that from first-hand experience as I have spent too much money trying to kill it. It spreads by underground rhizomes and by spores in the wind. It is estimated to occupy between 1.3 and 2.8 per cent of the land surface of the United Kingdom and has the potential to expand by 1 per cent to 3 per cent per annum.
Whereas it is acknowledged that bracken has some advantages in terms of landscape and wildlife protection--I refer to fritillary butterflies, butterfly orchids and cover for birds such as pipits, nightjars, whinchats, redstarts and some warblers--it has many disadvantages. In large masses it reduces visual diversity, harbours flies and is a fire risk. It is a cause of disease, ticks and flystrike. It is carcinogenic and is a serious cause of disease in cattle and sheep, including blindness, carcinomas, louping, tick-borne fever, lyme disease and skin rash. I have too many acres of it and have spent much time killing it. That is a worthwhile occupation but it is necessary to keep people off the land while one is doing that.
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