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The Earl of Onslow: My Lords, I do not think that the Horsell Common Preservation Society has ever received such a high profile. I declare an interest. I am president of the society. It does not mean that I have to do anything, but it was set up by my grandfather for the benefit of the public around Woking.

Such problems have arisen with many commons in areas of considerable habitation—many houses. The proportions of 2 per cent and 0.25 per cent are completely reasonable. I know that the Government absolutely hate my telling them how well they have done; they get embarrassed and crawl—well, I have been told that that is the case.

I emphasise the question asked by the noble Baroness, Lady Sharp: is 2 per cent the maximum? Do people have to charge the maximum or do they have discretion, as would be reasonable? Above all, I support what was said by my noble friend Lord Trefgarne about industrial access.

It is all fine and large an old-fashioned and long-established right being tidied up, which is the case for domestic, private houses. The Government seem to have got that about right, if in a slightly complicated and obtuse way. Having said that, it is another matter to allow a commercial company to have an enormous increase in its assets at what could be either public or private cost. As we have heard, Guildford Borough

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Council and Hertfordshire County Council own a lot of common land. Why should they give an extra subsidy to commercial concerns to increase their value by a sleight of hand?

I know that we cannot amend secondary legislation. We must say either "yea" or "nay", which is a clumsy thing. However, I shall trust to the wisdom, common sense and ability to listen of the Minister. He should pay attention to what the noble Baroness, Lady Sharp of Guildford, my noble friend Lord Trefgarne and I have said. I hope that he will think that we have been sensible and reasonable: I think that we have. Our point needs substantial consideration.

Lord Faulkner of Worcester: My Lords, I am also happy to support the Motion, but I shall ask my noble friend the Minister one question. I apologise if I appear na˙ve in asking it. I read the supporting documents, and I am looking for an assertion that the compensation that will be paid is a once-and-for-all payment that will go with the property to which it applies and will not be re-applied to subsequent owners when they sell. I am sure that that is the case, but I should be grateful for such an assurance.

I shall indulge in a small personal anecdote. Last year, I sold a house on a common adjacent to the Malvern Hills. The common was owned by the Malvern Hills Conservators, and there was a frontage of about six metres between my garage and the road. When I came to sell, I discovered that, because of the legislation, a payment was required. When I bought the house, my surveyor, my lawyer and everyone else who advised me were unaware that compensation would have to be paid. Certainly, they did not alert me to that possibility. It never occurred to me that I was doing anything illegal by taking my car out of my garage and putting it on the road. It was necessary to reach an agreement, in great haste, with the conservators on a payment, so that I could go ahead with the sale of the property.

It strikes me that I am not alone in facing that difficulty. There are hundreds of houses around the Malvern Hills that abut onto common land, and the owners have not the faintest idea that they are acting illegally by driving in and out of their driveway across the common land. I hope that one of the effects of passing the regulations will be that DEFRA and its regional offices will undertake a publicity campaign to make people aware that they will have to deal with compensation. It may be that the landowners—in this case, the conservators—will not go out of their way to get it, but people will have a nasty shock when they come to sell their house.

Baroness Byford: My Lords, I also thank the Minister for bringing the regulations before us. Our discussions today will be slightly briefer than the discussions we had about the relevant part of the Countryside and Rights of Way Bill, on which we spent many hours. As noble Lords have suggested, that Bill had huge repercussions for some people,

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repercussions of which they were totally ignorant. People were not aware that they were not obeying the law within the law.

I have one or two questions for the Minister. On these Benches, we thank the Minister for the fact that the Government listened to that debate. As the Minister will know, we raised the issue in Committee, on Report and at Third Reading. The Minister agreed that, in some cases, the charges were too high and that, in some cases, they were too low. One of the problems was that the costs needed to be at a certain level to cover the cost of administering the registration of the easements. We thank the Government for listening.

The Government originally proposed a figure of 4 per cent. The level is now 2 per cent. Other noble Lords asked whether it was 2 per cent maximum or up to 2 per cent. I looked through the Countryside and Rights of Way Act 2000, and, as far as I could see, that is not defined as such. It is, I think, just 2 per cent, not up to 2 per cent. I seek a little clarification because, unless people actually seek easements, they do not have to get one. It is only in cases in which a party wants to instigate the process that there must be a response from either the owner of the land or the parish council. That is the scenario that has come up today. Can the Minister confirm that I am right in my understanding, which is that if people do not seek an easement, they need not go through the process? If they do, the relevant figure represents a maximum and not an "up to" figure. Having considered the matter, I understand that there is a certain leeway for councils and individuals in deciding whether to enact the full amount. I presume that the 2 per cent figure is a maximum, and I should be grateful for clarification.

I am grateful to noble Lords and to those in another place who spoke during the passage of the Countryside and Rights of Way Bill. Subsequently, however, I have had correspondence from Sally-Jane Raes of Chorleywood, who was concerned about the higher level of compensation. She felt that the legislation should read "up to 2 per cent". We cannot alter the regulations, but the Minister should clarify that.

I do not know whether Sally-Jane Raes has written to the Minister. In her letter to me, she mentioned several other things. One was the situation of those—perhaps themselves elderly—who live in older properties. Many such people are what I describe as property-rich but cash-poor. Have the Government considered making an easement on their behalf? Another point that she raised was that the market value of a house should be set at 1993 levels, not 2002 levels; that would make a huge difference. The interpretation of the law changed in 1993 in the Court of Appeal judgment. What is the Government's view of that? The final point that she raised was that car parking, as such, was not covered by the Act. I think that I am right in saying that we did not debate that issue. Have the Government considered whether there should, under the terms of easement, be specific allocations for parking, in cases in which a lack of space on the driveway means that cars are parked on the common, not the driveway.

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In another place, my honourable friend Mr Sayeed highlighted the fact that the Law of Property Act 1925 was never intended to stop people driving over the common to their home—not, I note, their business. It was intended to stop members of the public driving on a common while others were on the common for air and exercise. It is true that, between 1925 and 1993, no one was prevented from driving to his or her house across the common. However, the court has now denied that presumption of free access.

My honourable friend also asked how the regulations would deal with a case in which a house was sold but the former owner did not take up a request to buy the rights of access—perhaps he did not drive or did not want the rights. What position is the new owner in? That issue was raised in the other place. Will the Minister enlarge on it today?

My honourable friend Sir Paul Beresford also raised concerns in another place. He raised the issue of whether common land might be held by more than one person. If the common land were in private ownership, it might have been subdivided, and rights of access could go across more than one owner's land. What would be the position in such a case?

My noble friend Lord Trefgarne asked about the position of businesses. Again, I looked back through our deliberations, and I found that it had slipped through the net. We did not address that issue. I asked whether the legislation applied just to a house or to the fields or farm behind it. That has implications too. In Committee and at other stages of the Bill's passage, we decided that it referred only to the property. My noble friend has raised an important issue. We dealt only with domestic property, not business property. No doubt, the Minister will clarify that.

I have also had a long correspondence with Sir Sydney Chapman with regard to a letter that he received from William Pumfrey. I hope that the Minister has a copy of that letter; I understood that he was written to about the matter. As it is a long and full letter, I do not want to go through it in detail. The Minister indicates that he does not have a copy so it may be helpful to the House if I cover a couple of the points raised.

Mr Pumfrey raises an interesting point. Considering the law as it previously stood, he does not see why the property should be dealt with differently and considers that Section 68 should apply to all. He makes a lengthy legal argument. Perhaps it will be more helpful if I pass the letter to the Minister after the debate. I want to indicate the fact that he has raised queries about the regulations.

As noble Lords have said, the difficulty we faced in Committee and in taking the CROW Bill through the House related to the fact that the easement and arrangements fell between parish councils and individual owners. It was the responsibility of parish councils to try to get the best possible value for all their parishioners and therefore some parishes decided to charge a high rate. We welcome the fact that the Government have imposed a maximum of 2 per cent.

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They are sensible arrangements but raise issues not only for individuals and their properties but also for parish councils in the longer term.

Finally, Regulation 15 relates to the creation of the easement and begins:

    "Upon payment of the compensation sum either".

I wonder whether it should read,

    "upon receipt of the payment",

because a payment can be made but not received. I do not know whether it is normal legal practice within drafting orders. The Minister can perhaps clarify the matter. I support the points raised by my noble friend Lord Trefgarne.

8 p.m.

The Earl of Onslow: My Lords, I am sorry to intervene again, but my noble friend Lady Byford has put into my mind a new and important query. It relates to the access to agricultural land over common land. Let us assume that access to a farm is over common land and that we reasonably say that 2 per cent goes to the farmhouse. As the farm is a business, if the Minister accepts the force of the argument put forward by my noble friend Lord Trefgarne and supported by myself, how do we separate out the difference of access over the land to a private house and access over the same land to a farm or a business? I hope that the Minister will forgive me for intervening a second time. It is an important point arising from what my noble friend Lady Byford said.

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