| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Greaves: I am grateful for that further clarification and will go away and think about this again. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Greaves moved Amendment No. 218:
"(2A) If a person fails without reasonable excuse to comply with an order under subsection (2) above, he is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding one-twentieth of that level for each day on which the offence is so continued.
(2B) Where, after a person is convicted of an offence under subsection (2A) above, the local authority for the common concerned exercises any power to remove the cause of the obstruction, they may recover from that person the amount of any expenses reasonably incurred by them in, or in connection with, doing so."
The noble Lord said: Although Amendment No. 218 looks technical, it is a probing amendment to discover what sanctions the Government believe should exist—or whether they believe that any should exist—in the event of a person obtaining a court order for encroachments to be removed under Clause 36 and no action taking place.
Amendment No. 218 is based on Section 317ZA of the Highways Act, which refers to obstructions to rights of way introduced by the CROW Act in 2000. This may not be the best way to do it, but it seems strange that the Government are not suggesting sanctions, and that the Commons Bill does not contain sanctions, to be used against someone if the removal of, say, a fence or a hut is found necessary but not carried out. In the event of such a decision and someone being told by the court to comply, what happens if they do not? What ought to be in the Bill, if anything, to provide such sanctions?
Amendment No. 218A goes further. It would give a member of the public or a person—that might be a body, a local authority or someone else—power to remove the unlawful development or structure on the common and to recoup the costs. That is a more radical proposal, but underlying it is the question that the Government need to answer. Once people have exercised the welcome rights in the Bill to take legal action against people unlawfully encroaching on a common, what happens and how is the position to be resolved? I beg to move.
5.15 pm
Baroness Farrington of Ribbleton: On Amendment No. 218, we understand the point made by the noble Lord, Lord Greaves, that enforcement proceedings
14 Nov 2005 : Column GC266
need to be effective. However, the amendment would mix up civil and criminal proceedings in a way that we do not believe is either necessary or desirable.
County courts have sufficient powers to enforce their judgment and orders, and failure to comply with an order to remove works would be punishable as contempt of court. It is unnecessary to create a criminal offence as well. We have similar views on Amendment No. 218A. Where a court order requires a person to take action and the person fails to do so, that is a matter for the court to resolve and there are established procedures to do so.
We therefore do not agree that an applicant for a court order should have the powers proposed by the amendments. The county courts are not appropriate bodies to determine the guilt of persons concerned with criminal offences. With those assurances, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Greaves: I am grateful to the Minister for that explanation, which is on the lines I expected. The amendments were a form of flying kites to get the Minister to explain how the provision will work. So if I went to the county court to get an unlawful development on a common removed; the court found that it had to be removed and issued a court order or judgment—whatever it would be—to say that it had to be removed, and it was not, I would then have to go back to the court to take action to enforce that contempt of court. Is that what the Minister is saying?
Baroness Farrington of Ribbleton: I understand that the court would have the power to enforce its judgments and orders and that the job of the noble Lord would be to draw to its attention that its judgments and orders had not been carried out.
Lord Greaves: I am grateful for that further explanation; obviously I shall go away and think about it again. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 218A not moved.]
The Chairman of Committees (Lord Brabazon of Tara): I must inform the Committee that if Amendment No. 219 is agreed to, I cannot call Amendments Nos. 222 to 221C because of pre-emption.
Baroness Farrington of Ribbleton moved Amendment No. 219:
On Question, amendment agreed to.
Clause 39, as amended, agreed to.
Lord Greaves moved Amendment No. 222:
The noble Lord said: This concerns a fairly technical matter concerning schemes set up under the Acts set out in Clause 40: the Metropolitan Commons Act
14 Nov 2005 : Column GC267
1866 and the Commons Act 1899. As it stands, the subsection will allow the appropriate national authority to override schemes of management where the schemes themselves prohibit works on commons and contain no provision for consent. It is suggested that in such cases that would undermine those schemes and weaken protection of the commons and their management. In particular, schemes of management under the Commons Act 1899 are intended to enable local authorities to manage and improve commons where the prime use is recreation. The schemes typically prohibit buildings and other permanent works from being constructed on the common unless they are for use in connection with the council's management of the common for recreation, in which case consent from the owner and the Secretary of State must be obtained.
The Bill will therefore weaken the effect of the schemes, which prohibit certain works on commons, because it will allow such works to take place regardless, as I understand it, with the consent of the appropriate national authority. These schemes were introduced for the valuable purpose of ensuring that commons can be enjoyed for recreation, and they should not be so weakened. On that basis, I beg to move and look forward to the Minister's comments.
The Chairman of Committees: I should point out that if this amendment is agreed to, I shall not be able to call Amendment No. 223.
Baroness Farrington of Ribbleton: We understand that the intention behind the amendment of the noble Lord, Lord Greaves, is to ensure that the controls on works on common land contained in schemes made under the 1866 or 1899 Acts should not be weakened. However, we do not believe that our proposals would have that effect in practice. Schemes made under those Acts are administered by local authorities, and the general objective of such schemes is to enable the commons to which they apply to be managed effectively. My understanding is that schemes generally apply on commons where access and recreation are the predominant use of the land. Schemes made under the 1899 Act generally contain standard terms which follow a prescribed model, most recently revised in 1982. Those terms set out the powers available to local authorities to regulate and manage the common.
I turn to the works which may be undertaken on commons subject to schemes of management. Such works generally divide these into three classes: those that can be undertaken without the consent of the national authority; those that can be undertaken only if the consent of the national authority is obtained; and, finally, works which are not provided for in the schemes and therefore arguably cannot be undertaken in any circumstances.
Clause 40 changes the position in respect of the third class of works. This clause provides that such works will be lawful provided that the national authority's consent is obtained. There are two main reasons why we consider this to be appropriate. First, it is not
14 Nov 2005 : Column GC268
always clear into which class works fall. Our amendment reduces that lack of clarity. In future, either works would be permitted without consent, as now; alternatively, works could be undertaken with the consent of the national authority. Secondly, it is sometimes possible for a local authority to amend the terms of an 1899 Act scheme so as to make prohibited works lawful or to amend the scheme by excluding from its scope the land on which the works are to take place. Neither of those actions would require the consent of the national authority and we think that that is a rather undesirable approach to encourage.
We believe that it would be better for the local authority to have the option of seeking consent from the national authority for the works it either wants or needs to undertake, thus ensuring that the proposals are reviewed by an independent person—that is, the national authority or someone appointed to act on its behalf, possibly following a public local inquiry when that is needed. I reassure the Committee that, in deciding any application for works on such land, the existence and purpose of a scheme would clearly be a matter of considerable importance which the national authority would be required to take into account.
I apologise to Members of the Committee for having replied at length but I think that it was important to put the background to this on the record. With those assurances, I hope that the noble Lord will feel able to withdraw his amendment.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |