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Baroness Byford: Amendment No. 205, tabled in my name and grouped with these government amendments, is probing in nature, as I am sure the Minister will realise. My questions are: how do the Government define "electronic communications apparatus", what technically is a code network, and why should such a thing have special dispensation in the Bill? I think that there is a Division in the House.
Lord Bach: I have been saved by the bell.
The Deputy Chairman of Committees: The Committee stands adjourned for at least 12 minutes.
[The Sitting was suspended for a Division in the House from 4.15 to 4.25 pm.]
Lord Williams of Elvel: Perhaps I may ask my noble friend two questions. First, I imagine—I hope that my noble friend will clarify this—that if the amendment is accepted, all easements in respect of, for example, British Telecom, which I understand is allowed by order to ask for easements on common land to put up telegraph poles all over the place, will still be permitted. If not, what will be the situation?
Secondly, I have a rather more provocative question. Let us suppose—we have to pass Acts supposing that certain things will happen—that a future Parliament, or indeed a national Assembly under some kind of devolved legislation, decides that wind farms should be put up on all common land. Presumably, that would be allowed by my noble friend's amendment. Perhaps he could clarify that.
Lord Bach: My noble friend is very rarely provocative, although this may be one of those exceptions. The noble Baroness, Lady Byford, asked about definitions of the expression "electronic communications apparatus". The terms are defined in
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the Communications Act 2003. Broadly, they relate to telecommunications equipment and equipment for Internet access.
My noble friend Lord Williams asked about wind farms. As well as any normal planning consent, consent for wind farms will usually be needed from the national authority under Clause 36, as will any works that prevent or impede access to common land. Each case is judged entirely on its merits. Of course, an inquiry is likely to be held into any proposal for controversial or large-scale works. As my noble friend knows, wind farm developments are considerable in scale, and that will be one of a number of factors to be taken into account. In some case, developers may conclude that a more appropriate mechanism for obtaining consent would be to provide exchange land and to apply instead under the Part 1 powers and deregistration and exchange provisions in Clauses 15 and 16.
Constructing wind farm developments on common land will certainly not be an easy option as the tests will be rigorous. Commons associations will be set up to protect and manage common land and not to encourage works that are inconsistent with their interests. So if my noble friend fears that it will be easy for those who want to build wind farms to do so under some kind of exemption, the answer is that that is not the position.
With regard to easements, I refer my noble friend to Clause 36(6)(c), which ensures that consent is not required for laying or erecting telephone lines on common land. Otherwise, the same rules apply as do those in respect of other land. The owner must grant an easement or the operator must use its compulsory powers to acquire easement.
Lord Livsey of Talgarth: Just before the noble Lord responds, with reference to wind farms, did I understand the Minister to say that a local authority denial of consent could be overruled?
Lord Bach: I am talking about large wind farms, and responsibility rests with the DTI—central government—rather than any local authority to decide on those planning issues.
4.30 pm
Lord Livsey of Talgarth: None the less, the local authority would have a view of the situation. Does it mean that the only route that objectors can take is a public inquiry?
Lord Bach: It would certainly be a matter seriously to be taken into consideration by the Secretary of State—by the national authority—if the local authority were to take a contrary view.
Lord Williams of Elvel: Perhaps I may correct my noble friend. The Electricity Act 1989 provides that any electricity installation of above 50 megawatts generating capacity is referred automatically to the Secretary of State. Anything under that is designed for local authority—national authority, in the case of
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Wales—approval. We need not continue this discussion because we have resolved the problem. I was concerned only that a future government might wish to produce legislation which could enforce wind farms of a smaller nature on common land. As I read my noble friend's amendment, that would be allowed if the legislation were so passed.
Lord Inglewood: On wind farms—
Lord Bach: Perhaps the noble Lord will give way. I intend to write to my noble friend on wind farms and to circulate copies to all noble Lords. Perhaps that will suffice for the moment. We have to get a move on if we possibly can.
Lord Inglewood: If the Minister will allow me to put the point I wanted to make, he can answer it in a letter. It relates to the development of a wind farm on a common, particularly if the owner of the common owns land adjacent to it, each wind turbine taking up only a few square feet. On the basis of what the Minister has said, the owner can exchange a small piece of his land on the edge of the common, thereby taking the site on which the proposed development would stand outside the definition of a common. Is that correct?
Lord Bach: Yes, but I will write.
The Duke of Montrose: Perhaps I may ask a question which has struck me. The Minister has spoken to Amendment No. 207 to subsection (6)(d) dealing with the taking or working of minerals for which no planning permission has been given. I live under a regime slightly different from that which exists down here. In Scotland, there is the idea that customary use by a landowner of minerals is permitted and this clause, to my reading, would tend to rule that out. Does that change the position?
Lord Bach: In the letter that I shall write on wind farms, I shall deal with mineral rights. I commend the amendment to the Committee.
On Question, amendment agreed to.
Lord Bach moved Amendments Nos. 203 and 204:
"(a) works on any land where those works, or works of a description which includes those works, are authorised in relation to that particular land by or in pursuance of an enactment;
(aa) works on any land where works of a description which includes those works are authorised by or in pursuance of an enactment applying to common land;"
Page 20, line 14, at beginning insert "works"
On Question, amendments agreed to.
[Amendment No. 205 not moved.]
Lord Bach moved Amendments Nos. 206 to 209:
"(a) the grant of planning permission under an enactment does not constitute authorisation by or in pursuance of that enactment;
(b) the conferral of functions on a commons association under Part 2 in relation to any works does not constitute authorisation to carry out those works."
Page 20, line 25, at end insert—
"(7A) For the purposes of subsection (6)(aa), an enactment applies to common land if it is expressed to apply to—
(a) registered common land;
(b) common land; or
(c) a common or commons, commonable land, land subject to inclosure under any enactment or other land of a similar description."
On Question, amendments agreed to.
The Duke of Montrose moved Amendment No. 210:
Page 20, line 28, leave out "to" and insert "having rights in relation to, or occupying the land potentially affected by,"
The noble Duke said: Amendment No. 210 is intended to clarify the meaning of Clause 36(8), which gives consent to works on common land. The Bill provides that,
"consent given to works under this section does not affect any requirement arising apart from this section to obtain the consent of any person to those works".
That is too vague, given the potential conflict that could arise regarding proposed works on common land. I have voiced the importance of including in the Bill the rights of owners and it is just as important to acknowledge the rights of common. Yet in this instance, we again find the familiar phrase "any person". Surely, only the people whose extra consent would be needed are those whose lives would be affected by the work.
The amendment is a simple point of clarification which seeks to ensure that the interests of individual rights holders and land occupiers are included and respected on the face of the Bill. I beg to move.
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