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Lord Bach: We understand the point that the noble Duke is making. We will reconsider the drafting of the clause to see whether it can be made clearer.
The Duke of Montrose: I am grateful to the Minister for his approach and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36, as amended, agreed to.
Baroness Byford moved Amendment No. 211:
The noble Baroness said: This amendment relates to a debate on a previous amendment when we were trying to define the interests of the neighbourhood and the position of people with common rights. On the third day in Committee, the noble Baroness, Lady Farrington, indicated that the Government
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would reconsider Amendment No. 106. We believe that clarification is also needed of this section of the Bill. I beg to move.
Lord Bach: The Bill has been carefully framed to ensure that the Secretary of State and the Assembly take proper account of a range of interests in considering an application for consent. These include the interests of the holders of rights of common, the public interest and the interests of the neighbourhood. The last of these reflects the historical and present position under Section 194 of the Law of Property Act and it is only right that particular regard should be paid to the views of those who live within the vicinity of the common when determining an application for works.
We have in mind a distinction between the interests of the neighbourhood, which comprise the interests of the community living nearby, and the interests of the public, which are self-evident. Works which might be in the interests of the public might well be resisted by the local community or vice versa. Paragraph (b) will enable both sets of interests to be taken into account.
We are grateful to the noble Baroness for reminding us of the previous debate, but that was about village greens rather than common land as such. I do not know whether I am right about that.
Baroness Byford: I think that the noble Lord is wrong, but I will again check carefully. We were trying to question the interests of the neighbourhood, which Amendment No. 106 was all about. At that stage, the noble Baroness indicated that the Government wanted to think about the issue and come back to us later. The two are linked and they were therefore raised again.
If it would help the Committee, perhaps the noble Lord would consider the issue and check the two amendments. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 212 not moved.]
The Duke of Montrose moved Amendment No. 213:
The noble Duke said: This is a probing amendment. Would retrospective permission be available only to works that have been commenced or completed before the passage of this Bill through Parliament, or is it the Government's intention to allow certain persons or types of work to obtain retrospective clearance at any time in the future? I beg to move.
Lord Bach: We believe that Clause 37(6) makes sensible provision for works which have already taken place, perhaps inadvertently or in ignorance of the controls. It is currently the department's practice to accept applications where the works have already been undertaken. Although the practice has no specific statutory basis, we believe that it is the right approach. Therefore, we considered it appropriate to put the matter beyond doubt and give the existing policy a statutory basis.
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We are not aware that treating works already undertaken in this way has caused any problems in the past. Where no application for consent has been made, it seems to us to be a more sensible approach to allow for such consent to be sought.
Enforcement action can then follow either if no application is made or if consent is withheld by the national authority. Without that statutory provision, it may still be possible for the national authority to take the same approach as it does now, albeit on an informal basis. Clause 37(6) would put that beyond doubt. I emphasise that the inclusion of that subsection should not be seen as an encouragement to flout the law and construct works without consent but, where that has happened, a belated application under Clause 37(6) is the most appropriate first course of action to try to put the situation right.
Further, simply submitting an application for consent under the clause will not mean that a court action cannot be undertaken. In other words, the provision could not be used to frustrate enforcement action. The noble Duke asks whether it applies retrospectively. The answer is that it will cover all works, including those in future. It is not a transitional measure.
The Duke of Montrose: I am most grateful to the Minister for that reply—that it is not tied to the date of the passage of the Bill through Parliament. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 [Consent: procedure]:
Baroness Byford moved Amendment No. 214:
The noble Baroness said: We have consistently asserted that when timetables are set, they are often set for people other than the Government. The amendment deals with the consent procedure, which is lengthy. Reference in Clause 37 to having regard to the interests of the neighbourhood and others will surely lengthen the process even further. Once an application has been lodged, it is desirable—probably even necessary—that subsequent events occur within strictly observed limits. We contend that the imposition of a timetable is at least as important as defining the form and content of an application or the procedure to be followed in making it. It appears that the Government are preoccupied with the minutiae and may have lost sight of the original stated purpose of the Bill: to give effect to sections 2, 3 and 5 of the common land policy statement of 2002. That is why we propose the amendment. I beg to move.
Lord Livsey of Talgarth: Briefly, I support the amendment in principle. The process should not be open-ended. The imposition of a timetable would ensure that information and completion would occur within a specified time limit.
Lord Bach: We fully appreciate the sentiment behind the amendment, which I assume is to provide for the
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procedure to determine applications under Clause 36 to be streamlined. The noble Baroness is right. As it happens, currently there is no formal timetable for applications for consent to undertake works under Section 194 of the 1925 Act. I am advised that straightforward applications normally take between four and six months from application to determination. Obviously, some are completed more quickly; others may take longer, especially the more complex or controversial cases or those in which a public inquiry is held.
One of our objectives is to reduce the time that it takes to decide applications by modernising and updating the application process. In Clause 38, we have taken fairly wide powers that we hope will enable us to make a number of improvements to procedures—for example, by prescribing in regulation the steps to be taken by both applicants and the national authority. Whether we would want to go as far as to prescribe specific timetables for applications is open to question. Each application is individual and can raise different, sometimes complex issues that cannot always be foreseen at the start of the application process, so delays can arise for a number of reasons and at various stages of the process. I cannot immediately envisage circumstances in which it would be possible to prescribe a realistic timetable for an application unless that timetable was so flexible as to be meaningless in practice.
4.45 pm
However, fully taking the noble Baroness's point, I am sure that administrators will want to consider that when drafting proposals to streamline the procedures. Should it be decided that a timetable for applications would serve a useful purpose, the power to do that is already contained in the clause. I refer the noble Baroness to Clause 38(2)(f), which states,
That could well be to prescribe a timetable for determining the case. So an amendment on the lines suggested is unnecessary.
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