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Baroness Byford: I thank the Minister. I must say that I am disappointed; my amendment is attached to that paragraph. It would be better if some steer were given. Perhaps before Report, the Minister could tell the Committee what is the average timetable currently. He mentioned between four and six months, but that is an average. That may well be acceptable, but the question obviously arises: can it take one or two years before it is finally determined? If the Minister could do that, I should again be grateful. At this stage, I thank him for his reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bach moved Amendment No. 215:
The noble Lord said: Government Amendment No. 215 extends to any person the power to take enforcement action against unlawful works. I say at once that I hope that the noble Lord, Lord Greaves, will be pleased with the amendment, because it goes further even than his amendments in this group. As well as individuals, it would include corporate and other bodies, which we consider to be an appropriate extension of the power.
The new wording also addresses a potential difficulty with the original formulation, which conferred the power on anyone with a right of access to the affected land. That might have given rise to a loophole whereby individuals could not have brought enforcement actions against works carried out in contravention of Clause 36 if the effect of the works was to cause the land to cease to be subject to a right of access under CROW—for example, if the land became excepted land because it had been built on.
As a result of the extended power in Clause 39(1), subsections (3) and (4) thus become superfluous. All the bodies listed in those subsections will be eligible to take action under the new formulation in subsection (1), so those provisions are removed by government Amendment No. 219.
Government Amendments Nos. 231, 242 and 243 are consequential on Amendments Nos. 215 and 219. The national park and broads authorities do not now need specific powers to take enforcement action. Those powers are conferred by Clause 39 as amended. Finally, government Amendment No. 232 introduces transitional provisions for unlawful works undertaken before Clause 39 comes into force. We consider it appropriate that similar enforcement provisions be applied to all unlawful works once the new Act is in force, whether those works were undertaken before or after it became law. Thus, we have amended Section 194(2) of the Law of Property Act 1925 to achieve that. I beg to move.
Lord Greaves: The Minister rightly said that his amendment goes further than my Amendments Nos. 220 to 221C, which were intended merely to test the meaning of the phrase "eligible person" and perhaps to stretch it a little. The Minister has stretched it much further to mean "person", which, he has confirmed, means all the people and organisations in the amendments that I have tabled and lots more. On that basis, I am delighted to support the Government's amendment.
Baroness Byford: The Minister has already clarified my two queries. In removing "eligible" the amendment opens the provision to corporate bodies, voluntary organisations or charities. Bodies such as the Ramblers' Association and the Open Spaces Society, which may have a direct interest, spring to mind immediately. In spite of that, I am slightly concerned about the risk of frivolous or vexatious applications. I do not know whether the Government have considered that. It is a general relief that any person or organisation can make an application. Obviously it is
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easier if organisations do it because they have the financial backing that an individual may not have. In removing the term "eligible", allowing any person or organisation to apply, does the Minister not consider that cases will be brought that previously might have been considered frivolous or vexatious?
Lord Bach: I cannot guarantee that no such cases will be brought but the courts are used to dealing with frivolous and vexatious litigants. Every court has its own power to deal with such people or organisations. Of course it is a matter of degree but we are confident that the courts know from bitter experience how to deal with such people and that they can be condemned in costs. There are other remedies as well. I hope that that is a satisfactory answer.
Baroness Byford: Yes, it is. The reason that I keep raising some of those issues is that we are in new territory. The CROW Act has now cut in and common lands are much more available for people to walk on than they were previously. I shall not repeat what I said on an earlier amendment but I would be very grateful if the Minister would bear in mind, and perhaps at some later stage clarify further, who would bear the costs if cases are brought forward. Obviously the individual would bear them, but presumably the commons association, the Government, the local authority or the National Assembly for Wales will have to counter it if those claims are brought forward. Although in the past not too many claims have been made, we are in new territory and I fear that more may be made. If my fears are groundless, people will be able to say, "I told you so" but it is because we are on new ground.
On Question, amendment agreed to.
The Duke of Montrose moved Amendment No. 216:
The noble Duke said: This is a probing amendment. Is it the Government's intention that a court may make a removal and restoration order even in a case where the consent is in order but its terms have not been totally met? That would seem to contradict the spirit of paragraph (b), which implies that non-compliance with specific terms and conditions is open to correction rather than destruction. I beg to move.
Lord Bach: I am grateful to the noble Duke for moving this probing amendment. It would unnecessarily restrict the power of the court to order the removal of unlawful works. We accept that in some cases where Clause 36 consent had been given but there was a minor departure from its terms, removals of all the works might not be appropriate. But I can equally envisage the possibility that the departure could be of such significance that the removal of all the works might be appropriate. The bottom line is that it is for the court to decide, depending on the circumstances of the case. We believe that the powers of the Bill are appropriate to enable it to do that. The court is not obliged to order the removal of works in response to an application. Of course the word "may" in
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subsection (2) implies a discretion. So if the court thinks that the breach of the requirement for consent is technical or that the application is unmerited, it need not grant the order sought. I hope that that satisfies the noble Duke.
The Duke of Montrose: That will be a very useful contribution to have on the record. I am most grateful to the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Greaves moved Amendment No. 217:
"( ) It is the duty of the commons registration authority to prevent, as far as possible, the unlawful encroachment on any common land for which they are the registration authority."
The noble Lord said: This amendment places a duty on the appropriate authorities—that is to say, the commons registration authorities—to take action against unlawful encroachment and development on commons. I am not sure whether the wording of this amendment is ideal but the intention behind it is fairly clear.
At present, there is no duty on local authorities to take action to remove illegal works on commons. Over the years it has proved difficult to persuade many local authorities to treat that as a priority. The intention of the amendment is to make the situation regarding unauthorised works on commons the same as that on highways, in respect of which Section 130 of the Highways Act 1980 places on highways authorities a duty to take action against illegal obstruction and at the same time gives the public a power to do so.
The Bill gives the public a power to take action against unlawful works, which is a very welcome step in the right direction. I am interested to hear from the Government why they feel that local authorities should not at the same time have a legal duty to keep commons free from encroachment, since they have more resources and greater ability to take people to court than ordinary people do.
There are many examples of unlawful works on commons. I shall not read out my detailed list, which dates from 28 June 2005, when the Bill was published. It includes examples such as fencing, tracks, orchards, car parks, a Christmas tree plantation and even a builders' yard. A survey of 62 commons in the East Midlands, carried out last year on behalf of the Open Spaces Society, found that illegal encroachments had been made on more than one third of those commons, in some cases to the extent that the common was non-existent. Problems included impenetrable scrub, arable fields, an anglers' car park, farm storage, the infamous Christmas tree plantation and private gardens.
There is clearly a problem and the Government are taking very welcome steps to tackle it in the Bill. However, it is not clear why they think that local authorities should not be under a duty to deal with
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problems when they are reported to them rather than being able to do so if they wish. Amendment No. 217 would place on them that duty. I beg to move.
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