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Baroness Farrington of Ribbleton moved Amendment No. 227:
"(2A) In subsection (2), "common land" means—
(a) any land registered as common land; and
(b) any land not so registered which is subject to a scheme under the Metropolitan Commons Act 1866 (c. 122) or the Commons Act 1899 (c. 30).
(2B) The appropriate national authority may by order amend any Act made under the Commons Act 1876 (c. 56) confirming a provisional order of the Inclosure Commissioners for the purpose of making provision about works on land to which that Act relates."
The noble Baroness said: The purpose of the provisions in Clause 42 is to achieve clear and consistent control on works wherever they arise. The amendments bring clarity to and slightly extend the power of the national authority to amend Acts which provide for works to be authorised on common land.
5.45 pm
Over the past 150 years, various enactments have imposed controls on the works that can be undertaken on commons. Unfortunately, the relationship between these enactments is not always clear and the controls not always consistent. This power will enable us to ensure that where such controls arise, the national authority may amend such enactments to bring greater clarity and consistency. This power would not, of
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course, be used without full consultation with interested parties and would be exercised by order subject to the negative resolution procedure.
Amendment No. 227 makes it clear that the Act to be amended must relate to the same type of common land as is covered by the controls in Clause 36. It also extends the power so that it can be used to amend provisional order confirmation Acts made under the Commons Act 1876. Amendment No. 228 is purely consequential on Amendment No. 227. I beg to move.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton moved Amendment No. 228:
On Question, amendment agreed to.
[Amendment No. 228A not moved.]
Clause 42, as amended, agreed to.
Schedule 3 [Works: supplementary amendments]:
Baroness Farrington of Ribbleton moved Amendment No. 229:
"(6) In that article—
(a) in paragraph (2), omit the words from "and the Minister" to the end;
(b) after that paragraph insert—
"(2A) Where an application is made for consent under paragraph (2) in the case of any common, section 38 of the Commons Act 2005 applies in relation to the application as it applies in relation to an application for consent under section 36(1) of that Act.
(2B) Where an application is made for consent under paragraph (2) in any other case, the Minister before giving any consent shall have regard to any representations made to him in the manner specified in paragraph (3).";
(c) in paragraph (3), after "paragraph (2)" insert "in a case to which paragraph (2B) applies"."
The noble Baroness said: Amendment No. 229 provides that the regulation-making powers in Clause 38 will also apply to applications for the consent of the Secretary of State and the National Assembly under the provisions of Article 17 of the order scheduled to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967. That is one of the longest titles to an Act that I have seen. Article 17 enables applications to be made for consent for certain limited types of works on commons under the control or management of a London borough council. This amendment will enable us for the first time to specify procedures or to charge fees for such applications, or to delegate the decision-making function to another person or body.
Amendment No. 241 is a technical amendment to Article 17, consequential to Amendment No. 229. I commend both amendments to the Committee and beg to move Amendment No. 229.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton moved Amendment No. 230:
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"3 (1) Section 29 of the National Trust Act 1907 (c. cxxxvi) (powers exercisable over common or commonable land) is amended as follows.
(2) Renumber the existing provision as subsection (1).
(3) In that subsection, for "consists of common or commonable land" substitute "is land to which this section applies".
(4) After that subsection insert—
"(2) This section applies to—
(a) any land registered as common land; and
(b) land not so registered which is—
(i) regulated by an Act made under the Commons Act 1876 confirming a provisional order of the Inclosure Commissioners, or
(ii) subject to a scheme under the Metropolitan Commons Act 1866 or the Commons Act 1899.""
The noble Baroness said: This amendment to the National Trust Act 1907 ensures that the controls on works in Part 3 will apply to the same type of land, whether or not it is owned by the National Trust. The amendment clarifies in particular that the controls will cover any unregistered common land owned by the National Trust that is subject either to a provisional order confirmation Act or a scheme made under the Metropolitan Commons Act 1866 or the Commons Act 1899. The trust is aware of this amendment and is content with it. I ask the Committee to accept it and I beg to move.
Baroness Byford: I am grateful to the noble Baroness for bringing forward the amendment. We discussed the position of the National Trust at earlier sittings of this Committee. If the noble Baroness can give us an assurance that the trust is content with the amendment—I certainly have heard nothing to the contrary—I am more than willing to support it.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton moved Amendments Nos. 231 and 232:
In relation to any time after the coming into force of this paragraph, section 194(2) of the Law of Property Act 1925 (c. 20) shall, to the extent that it remains in force at that time, have effect as if the words "interested in the common" were omitted."
On Question, amendments agreed to.
Schedule 3, as amended, agreed to.
Clause 43 [Powers of local authorities over unclaimed land]:
Lord Greaves moved Amendment No. 233:
The noble Lord said: Clause 43 deals with an important issue—that of land which is registered as common land but has not been claimed by any owners. In moving Amendment No. 233, I shall also speak to the other amendments in the group. Amendments Nos. 233 to 235 play around with "may" and "shall".
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Those words may or may not be relevant but, like the noble Baroness, Lady Byford, I believe that they are very important when it comes to carrying out legislation.
Like existing legislation, the clause does not place a duty on a local authority to take any steps to protect common land which has no known owner. However, in view of the importance of common land, I suggest that such a duty is necessary—for example, to bring SSSIs into a favourable condition; to improve commons for amenity purposes; and, not least, to ensure that commons can be enjoyed using the new rights of access under the CROW Act.
There appears to be a vacuum because local authorities often seem reluctant to take action to protect common land and to protect the public's interest in commons. Of course, it is not only the interest of the public that is important but also that of the commoners. I suggest that this essential duty is placed on local authorities to take action where necessary. We have discussed unlawful interference under a different provision, so I shall concentrate on the vesting side, which is dealt with in Amendment No. 235A.
Amendments Nos. 235A and 235C suggest that national parks and areas of outstanding natural beauty conservation boards should have similar powers—particularly national parks in view of the importance of commons within them and their importance in exercising many of the functions of local authorities in those areas. Defra's common land policy statement in 2002 stated:
"We promise to enable the vesting of unclaimed common land in a suitable body which will be empowered to deliver effective management".
The Government may say that they are doing that, but I suggest that making it a duty will strengthen the provision. Amendment No. 235A in particular does so. The consultation paper from Defra noted that there were approximately 2,000 unclaimed commons in England, amounting to 4,000 hectares, and 500 in Wales, amounting to more than 21,000 hectares. This is therefore an important issue, as Defra recognised in 2002, and it is unfortunate that the Bill merely re-enacts, rather than extends, existing local authority powers.
I also suggest that local authorities should have more powers than those merely to protect the land from unlawful interference and so forth, and that they should have powers to manage the land positively in the public interest. Many commons are neglected and overgrown and are crying out for positive management in the interest of public enjoyment, biodiversity, nature conservation, archaeology and so on. The amendment would enable a local authority to assume ownership of the land as though it had been acting as owner for the period required under the law of adverse possession. It is a relatively simple procedure that would ensure that all those neglected commons were properly cared for.
Amendment No. 235C concerns a more technical matter. It recognises that some commons are managed by district councils under the Commons Act 1899 and
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would ensure that if a parish or community council wished to assume ownership, it could do so only if the district had delegated powers of management to it, thereby avoiding a clash of interest.
The crucial point underlying this group of amendments is the fundamental question of what is to happen regarding commons that are unclaimed. I look forward to the Minister's response setting out how the Government see this working in practice and explaining why the further powers suggested in the amendments that I have tabled are not required. At this stage, it seems to me that either they or provisions very much like them are necessary. On that basis, I beg to move.
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