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Baroness Farrington of Ribbleton: We do not believe that it would be appropriate to impose a duty on registration authorities. We are firmly of the view that local authorities should have discretion on whether to take enforcement action, weighing up all the relevant factors and looking, on a case-by-case basis, at whether enforcement action is necessary or whether some other action might provide an appropriate and cost-effective remedy.

We understand that criticism has been levelled that local authorities are rarely inclined to take enforcement action save in the most clear-cut cases. I understand the concerns that the noble Lord has raised about alleged unlawful encroachment and works that have taken place over a period but we believe that the answer is not to impose a duty but to provide a power to take action. In that way, local authorities can consider all the circumstances of a case.

It could impose a very heavy burden on such authorities when they are dealing with a very minor transgression. Where more significant works are undertaken, the democratic process and the ability of local people and others to lobby local councils and their councillors should ensure that appropriate action is taken. Knowing the noble Lord's long experience of local government, I am sure he will agree that local authorities can be lobbied.

5 pm

We believe that the provisions in the Bill will provide a sound basis for the protection of common land in future. The package of measures we have brought forward, including the provisions in Clause 36 which clarify the kinds of works covered by the controls, and the powers we propose to take in Clause 41, which we shall get to in due course and which exempt from the controls certain kinds of specified works, gives greater clarity to the works which fall within the categories of needing or not needing consent. These improvements should not only reduce the likelihood of unlawful works being undertaken but should also remove some of the uncertainty as to which works are and are not permitted. We believe that that may be one of the reasons why local authorities have up to now been reluctant to take enforcement action.

This package of measures, when taken together, represents an appropriate, relevant and effective means to address the problems raised by the noble Lord and others in regard to unlawful works on commons. I commend the measures to the Committee and to the noble Lord. In the light of those assurances, I hope the noble Lord will feel able to withdraw his amendment.

Lord Livsey of Talgarth: I am sure the Minister will remember that I previously cited the examples of two golf courses appearing on common land. One of the difficulties is that urban authorities are perhaps not so attentive to encroachment of common land as rural
 
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authorities, which have a much better handle on it. I merely draw to the noble Baroness's attention that this happened and that the local authority decided in its wisdom—but I think otherwise—not to take any action. The dispute ended up in a five-year court case.

Baroness Farrington of Ribbleton: It may help the noble Lord if put on the record that the functions of local access forums, established under the Countryside and Rights of Way Act, include advising local authorities on the improvement of public access to land for the purposes of open-air recreation and enjoyment of the area. Should the forum consider it appropriate, this could include advising on the use of enforcement powers. We will consider very carefully, as part of the current review of the powers of the forums, whether their advisory function should be extended to any other bodies. The review will also consider whether it would be desirable to issue guidance to forums on the subject of enforcement against unlawful works on commons.

I should like to write to the noble Lord on the detail of the more discrete point he raised about golf courses.

Lord Greaves: Can the Minister tell the Committee how many cases have been taken to court—over whatever period of time she wishes to choose—by local authorities and whether it confirms that they have not been very active in pursuing such matters?

Baroness Farrington of Ribbleton: Because we are not involved in these matters we do not have such information at our fingertips. If I can acquire that information without too much difficulty I shall do so. But, because we are not involved at government level, that may take a while. I certainly cannot promise the timing.

Lord Greaves: I thought that was the answer I would receive. Can the Minister provide any number at all of such cases which have taken place?

I am disappointed with the Minister's reply because the argument that this would be a dreadful burden on local authorities does not stand up. As I have said before, one of the duties that local authorities have already is to deal with blockages to rights of way, many of which are serious. But many are minor and are dealt with fairly quickly, not by taking people to court but by merely dealing with the matter. The real danger is that if local authorities do not have a duty to do so, they will not try to deal with the problem, even in cases where simply getting involved could sort it out. I am aware of a number of cases, including one at Blackstone Edge in the Pennines, which I know very well, where simply the involvement of the local authority—which I believe to be Rochdale—solved the problem without having to go to court. It is a question of whether local authorities will take this issue seriously. However, nothing the Minister has said convinces me that they will now take the problem seriously when they have not done so in the past.

Can the Minister explain what she means by "minor encroachments"? Clearly some encroachments deserve the expenditure of a great deal of time and
 
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resources by a local authority, but others can probably be sorted out quite easily. What is a minor encroachment? Is it something which relates only to a small piece of land? Is it perhaps the erection of a wind turbine, to which a noble Lord referred earlier? Or is it something which has only a small visual impact?

Can the Minister clarify what she said about local access forums? Did she say that the Government are consulting about whether to give local access forums powers to give advice to bodies other than the access authorities? Which other bodies might these be? Might they be Natural England or the appropriate national authority in relation to commons? Might they be the local authorities? Might they be the commons associations? What did the Minister mean by that—or are the Government consulting about what she means by it?

The Minister said that the Government are consulting on whether the local access forums should be given a role in dealing with unlawful works on commons. Clearly some unlawful works on commons—perhaps a great many of them—involve access, but, equally, others would not per se impede access in any great way. I am not sure of the relationship between the access functions of the local access forums and the wider issue of unlawful works on commons. Can the noble Baroness help me with that?

Baroness Farrington of Ribbleton: The noble Lord presses me to give an example of minor encroachments. This could be a road sign, a notice board and so on; something at that kind of level. I know from many years of working in different capacities of the same kind as the noble Lord that, if I am not careful, he will press me for an exhaustive list. But, on the scale of encroachments, the kind of example I have given would be regarded as minor. I think the noble Lord will accept that to impose a duty on local authorities to take enforcement action on something very minor might well be resented. Forums would expect advice to be given to any legal authority which may enforce under Part 3. That is the kind of area we are looking at

As to rights of way, we quite understand that highway authorities have a duty to remove obstructions—any person has a power to serve a notice on a highway authority requiring it to seek the removal of an obstruction—and that is not an unreasonable argument. But there are significant differences between rights of way and common land that must be recognised. Local authorities do not have the same duty in respect of common land as they have to highway authorities. We accept that much registered common land is now subject to a public right of access, but we have to recognise that in many instances access is not the only purpose the common land serves. It could have many other uses, the most obvious of which is agriculture.

We also need to consider the nature of the offence. Obstructing the highway is a straightforward matter, but deciding whether works prevent or impede access may not be. That is why we believe that these
 
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differences call for a different solution. We do not believe that a duty in every single case should be placed on local authorities to take it up. I understand the noble Lord's concern, but perhaps the clarification of local authorities' powers may assist in those cases to which he refers where he believes the local authorities have not acted with enough endeavour when blatant abuse has taken place.

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