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Lord Greaves: I spoke to Amendment No. 200 but I forgot to mention Amendment No. 200A. It seeks only to clarify certain structures.
Lord Bach: I shall respond to Amendment No. 200. We have already made it clear in Clause 36(2) that new resurfacing works are covered by the controls on works because they prevent or impede access to the surface of the land. We think that providing that ploughing or any other disturbance of the surface should also be covered goes just a little too far. The existing controls in Section 194 relate to fencing or the construction of works. By and large we consider that
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this remains the correct approach. Ploughing has never been regarded as "works" for the purpose of existing controls. Moreover, I remind the noble Lord that the consent granted under Clause 36 merely prevents works being unlawful under the clause and does not override the private rights either of commoners or of landowners. Regardless of whether works require or have been granted consent under Clause 36, a commoner might be able to bring an action in the courts against an owner or third party who has carried out works which prevent the exercise of his rights of common.
I turn now to Amendment No. 200A, which provides that all mining and quarrying operations should be added to the list. First, the amendment is unnecessary because Clause 36(3) is intended only to illustrate the types of work which may fall within the controls. Hence the reference to fencing, structures and so forth. Secondly, the amendment is unnecessary because the clause as drafted already covers works that prevent or impede access which are undertaken in relation to quarrying, mining and the electricity distribution network. Finally, it is not clear how the second part of the amendment relating to telecommunications equipment would work, given that Clause 36(6) exempts electronic communications apparatus from the controls on works.
Two government amendments are included in this group. They are technical in nature. Amendment No. 199 makes a very minor change to the wording of Clause 36(3) which gives examples of the type of works that may require consent under Clause 36(2)(a). Amendment No. 201 relates to applications for works on commons in London boroughs. Unless noble Lords want to know more about them, that is all I shall say.
Baroness Byford: I thank the Minister for his full response. Having listened to what he said on the government amendments, I do not have any queries in that regard.
I am sorry to nitpick at the beginning of our sitting, but the Minister said that the power was laid down under the 1925 Act. However, access and the CROW Act did not come into force until 2000, so the circumstances that applied in 1925 are not the same as those that apply today. While I shall not press the Minister at this stage, it would be helpful if he would consider that. Quite often we can work within an existing Act, but it is quite difficult with these provisions.
The Minister assures us that trivial and frivolous claims will not be made; in that case, he has greater faith in human nature than I have. With regard to the mapping of countryside areas for access, the challenges made by one individual, Kate Ashbrook, were a disgrace, in my humble opinion, and reflected what can happen if somebody gets a bee in their bonnet and takes advantage of a new set of circumstances. I do not think I need say any more in that respect.
The Minister kindly referred to the question of timetables. Perhaps he can give us an indication of what the Government consider a reasonable timetable. If this happened on Report, I should not mind, as it
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would be worth clarifying. While I am very grateful to my noble friend Lord Peel, I shall not comment any further on his amendment. We are both trying to achieve an effective method and system of being able to manage land. He has gone into it very fully and he may well want to come back on it later.
There is also the question of retrospective claims, which the noble Lord did not touch on.
Earl Peel: I do not intend to come back on these amendments because they are not actually mine. However, I endorse what my noble friend has said. I appreciate that the Minister is working hard to reach a sensible compromise and, to date, we have achieved just that. We shall have to look at Part 3 again very carefully because there is a real danger that we might end up with what I can only describe as frivolous and vexatious litigation. That has not happened up to now because the relevant authorities have looked at the matters sensibly and there has been a sense of equilibrium. I shall say no more at this stage except that I am, for the first time, disappointed by the Minister's response.
Lord Greaves: I thank the Minister for his clarification on some of the amendments I tabled. Some of these matters are quite technical and I still do not quite understand the relationship between Clause 36 and Clause 44, if there is one, or the difference between them. I shall do some more homework on this before deciding what else to do.
Baroness Byford: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 194 to 196 not moved.]
Lord Greaves moved Amendment No. 197:
Page 19, line 36, after "access" insert "including access under sections 2 (rights of public in relation to access land) and 3 (power to extend to coastal land) of the Countryside and Rights of Way Act 2000 (c. 37)"
The noble Lord said: Amendment No. 197 seeks to clarify that the rights of access referred to in Clause 36 include those rights of access under the Countryside and Rights of Way Act. I shall say no more about that. If the Minister is able to assure me on that point, I shall be happy to withdraw the amendment.
Amendment No. 212 refers, perhaps a little prematurely, to the consent regime which we will be discussing under Clause 37. It refers in subsection (2) to the public interest, including the protection of public rights of access to an area of land; that is simply to strengthen it to refer also to the promotion of those rights of access. I shall be interested to hear what the Minister has to say. I beg to move.
Lord Bach: We do not believe that Amendment No. 197 is necessary. I hope that that helps the noble Lord. In our view, the use of the term "access" in Clause 36 should be interpreted to include any access, whether it arises under specific legislation, such as the CROW Act or the Law of Property Act, or under common law, such as the right of access enjoyed by
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commoners in order to exercise their rights of common. That is the effect of the provision as drafted therefore the noble Lord's amendment is unnecessary.
In response to Amendment No. 212, the primary objective behind Clause 36 is to protect existing rights and we believe that the drafting of subsection (2) is consistent with that. Where works are for the promotion of public access, it is difficult to see how they might be caught by the controls in Clause 36 anyway, which applies to works that prevent or impede access. But even if there is an element of promotion in particular works that otherwise prevent or impede access, we believe that that matter can be taken into account under the criteria already in the clause.
Lord Greaves: I am grateful to the Minister for his clarification. I understood his answers more instantly this time. I am particularly grateful for his assurances on Amendment No. 197. On that basis, I beg leave to withdraw that amendment.
Amendment, by leave, withdrawn.
[Amendment No. 198 not moved.]
Lord Bach moved Amendment No. 199:
Page 19, line 39, leave out "works referred to in subsection (2)(a) include" and insert "reference to works in subsection (2)(a) includes"
On Question, amendment agreed to.
[Amendments Nos. 200 to 200A not moved.]
Lord Bach moved Amendment No. 201:
On Question, amendment agreed to.
Lord Bach moved Amendment No. 202:
The noble Lord said: This group of government amendments includes one opposition amendment that will be spoken to in due course. Amendments Nos. 203, 208 and 209 are intended to bring clarity to the circumstances in which works authorised by, or in pursuance of, any enactment are exempt from the Clause 36 controls. They make clear that works will be exempt if the requirements of either paragraph (a) or paragraph (aa), contained in Amendment No. 203, are met. I shall explain that more fully.
In paragraph (a), particular works or a particular description of works in relation to a defined site must be authorised by, or pursuant to, an enactment. For example, some local Acts conferring management powers in relation to common land authorise boards of conservators to carry out improvement works such as temporary fencing. Such Acts would pass the test in paragraph (a) because they authorise a particular description of works, the fencing, in relation to a particular site, the common, the management of which is vested in the conservators.
Under paragraph (aa) the works must be authorised by, or in pursuance of, an enactment expressed to apply to common land. An example is Section 83 of the
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Highways Act 1980, which provides that the highway authority may provide a cattle grid on any common land not forming part of the highway but adjoining the highway. That provision would pass the test in paragraph (aa) because it relates to works—the construction of cattle grids—in relation to common land generally.
Amendments Nos. 202, 204, 206 and 207 make technical changes to Clause 36, consequent on Amendment No. 203, to which I have spoken.
In Amendment No. 208, paragraph (b) provides that a commons association is not exempt from the requirement to seek consent for works under Clause 36 by virtue of any function conferred on it under Part 2. That is because there might be an argument that the conferral of functions on a commons association in an establishment order could amount to the first of the exceptions introduced in Amendment No. 203. It would not be right that a commons association was exempt from the usual requirements to seek consent under Clause 36. Also in Amendment No. 208, paragraph (a) is a technical amendment consequent on paragraph (b). I beg to move.
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