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Lord Tyler: My Lords, I am.
Lord Bach: He is, my Lords, but he obviously knows Dartmoor better than I doand I will be asking why that Dartmoor example was given.
Perhaps I may return to what is a serious debate. Permanent works of this scale and significance must be subject to the consent regime. Otherwise, there would be no purpose in having the regime. I do not rule out entirely the possibility that fences might be necessary in those or other similar circumstances, but the works would then be subject to the consent regime in Clause 38. The procedures will ensure that proposals are carefully scrutinised and that the public generally have a chance to make their views known and have them taken into account. If at the end of that process the national authority decides that a fence is necessary, I am sure that there would be widespread acceptance of that decision, but I cannot say that we are convinced that everyone would accept that works of that nature should be exempt from the controls, which is what is being sought, without the widest possible consultation.
Both noble Lords on the Liberal Democrat Benches mentioned emergencies. In emergencies, such as foot and mouth disease, there are already powers in the Animal Health Act that allow works to be undertaken. The exemptions that we have inserted in Clause 43 are for minor or temporary works, not works of such significance that they should be subject to the controls on works in Clause 38, which, as I understand it, have the general support of noble Lords. Exemptions are not a substitute for a fast-track procedure for emergency works because such exemptions are made by order.
I am invited to come back to the noble Lord, Lord Tyler, on the Dartmoor point. I am not sure whether I shall resist the temptation, but I am advised
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that most roads across Dartmoor commons are not fenced. The fenced sections tend to be across newI cannot read them.
Lord Tyler: My Lords, perhaps I may give the noble Lord an opportunity to look again at his notes by intervening briefly to say that I chose my words carefully. Not all the highways across Dartmoor are fenced, but the major roads, particularly those in the vicinity of the outskirts of Plymouth, are and have been for many years. I know, as I used to be vice-chair of the Dartmoor National Park Committee.
Lord Bach: My Lords, I have now had translated the word that I was looking at. The fenced sections tend to be across what is described as newtakes, also in-bye land and inclosures, which are not common land. I think that the noble Lord and I, who agree on so much, will have to disagree on this.
Lord Tyler: My Lords, I invite the Minister to visit Dartmoor.
Lord Bach: My Lords, I was hoping that the noble Lord would do that. I have made our point on why we do not think that making what, on the face of it, sounds like an attractive addition to the clause is appropriate. I repeat: emergencies can be dealt with under existing legislation, and, of course, would be dealt with under emergency legislation.
Amendment No. 60, I understand, is a probing amendment. I shall try to explain where we come from on it. The intention is to find out when the Government intend to make orders specifying certain exemptions from the controls. We do not envisage that just one order would be made. A number of them could be made as and when the national authority considered it appropriate to do so. My letter tried to explain to noble Lords that we saw the system as a flexible one, allowing the national authority to decide at any time to make an order. What may prompt the making of such an order might be the result of work undertaken by the national authority itself, or it could happen as a result of a request from another body. We see the system helping to ensure that the consent regime effectively protects the open and unenclosed nature of common land, without imposing unnecessary or unwarranted burdens on anyone.
Although I have to emphasise that the decision to issue an order is discretionary, I can give a reassurance that our intention is to make such orders specifying exemptions where it is appropriate. We envisage taking forward the question of exemptions at the same time as the implementation of Part 3 generally. That process will involve consultation with interested parties. There will be an opportunity at that stage for
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people to comment on our proposals and to put forward suggestions of their own. That is as far as I can go tonight in dealing with the amendment.
Earl Peel: My Lords, I intervene briefly to say that the Minister has given me much the answer that I hoped that he would. So I am extremely grateful for that.
Lord Bach: My Lords, I have finished what I wanted to say about Amendment No. 59.
Lord Livsey of Talgarth: My Lords, we will read carefully what the Minister said about our amendment on animal welfare. It seems to us that there are situations in which this should apply. It is a question of interpretation whether provisions in the Bill are adequate forperhaps we should saysmaller activities, where for humane purposes it is necessary to bring animals into a space that has capacity for them to be examined and treated, if necessary by a vet. Indeed, it may be a question of life and death for the animal. So we shall read carefully what the Minister has said. We may look at this again and have discussions with our colleagues in another place about it. In the mean time, I beg leave to withdraw the amendment:
Amendment No. 59, as an amendment to Amendment No. 58, by leave, withdrawn.
On Question, Amendment No. 58 agreed to.
[Amendment No. 60 not moved.]
Clause 44 [Supplementary]:
Baroness Farrington of Ribbleton moved Amendment No. 61:
The noble Baroness said: My Lords, Amendment No. 61 provides that the powers in Clause 44, which allow a national authority to amend by order local or personal Acts, can be used only in respect of Acts passed before this Act.
That responds to a concern expressed by the noble Baroness, Lady Byford, in Grand Committee that, otherwise, that power could be used to amend Acts passed in future. That would clearly be inappropriate. Amendments Nos. 72 and 74 make similar changes to other provisions in Clauses 51 and 52, which give the national authority powers to amend local or personal Acts by order. We hope that the noble Baroness is pleased. We are grateful to her for her assistance. I beg to move.
Baroness Byford: My Lords, I am grateful to the Minister for the government response to the amendments that we moved in Committee. That was our previous Clause 49 and Amendment No. 244 in Hansard at column GC291. I shall not delay the House any longer but thank the Minister for coming back and responding to the suggestions that we made in Committee.
On Question, Amendment agreed to.
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Clause 45 [Powers of local authorities over unclaimed land]:
[Amendments Nos. 61A to 61D not moved.]
Lord Greaves moved Amendment No. 61E:
"( ) The appropriate national authority shall issue guidance to local authorities on the exercise of their powers to take action over unclaimed land."
The noble Lord said: My Lords, this is another issue to which we have not really got to the bottom yet and there is no satisfactory solution in the Bill. It concerns unclaimed commonsland that has been registered as common land that has not been claimed by any owners. Some of it may be small pieces of land that have effectively been abandoned; others may be commons that are satisfactorily operated as commons, but no one knows who is the owner. There is a whole range of them with different circumstances and not all of them are in crisis. However, there is a significant number of unclaimed commons out of the 2,000 in England, which amount to 4,000 hectares, and 500 in Wales, which amount to more than 21,000 hectares where there is a significant problem.
We had a long discussion about this in Grand Committee, where I tabled amendments proposing that ownership of unclaimed commons could be transferred to local authorities by various technical means. The Minister was very persuasive in suggesting that that was not the way around the problem and would lead to all sorts of complicationsnot least a problem with the Human Rights Act 1998. Nevertheless, there is a problem. Many commons are neglected, overgrown and crying out for positive management.
In Grand Committee, the Minister suggested that the main answer to that lay in the powers within the Bill to deal with unlawful incursions on commons, unlawful encroachments of the sort that we were discussing a few groups ago. Where the problem is one of unlawful incursion, of damaging development or works on a common, it can indeed be dealt with in that way. In that sense, the Minister was right. But in many cases, the powers under Clause 45 will be insufficient. In replying to the debate in Grand Committee, the Minister saidand this gets to the nub of the problem:
"We believe that the real problem underlying unclaimed land is not that there is no known owner but that the lack of clarity about ownership can give rise to ineffective management. We therefore concluded that the problem could be tackled by enhancing the powers for management of unclaimed land and, in addition to Clause 43 and schemes of management under the Commons Act 1899, to give commons associations established under Part 2 the power to manage unclaimed commons"[Official Report, 14/11/05; col. GC 277.]
All that will be extremely helpful, useful and positive, but there will still be commons that are unclaimed, in a mess and that need management that will not be covered by any of those provisions.
If the Government will not accept what I propose in Amendment No. 61F, what do they think could be done? How will those commons be tackled? It is not a question of unauthorised encroachment. There are no
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management schemes under the 1899 Act and there is no commons association. The problem is one of management. It is highly likely that it is a problem of management of the vegetationit is overgrown with brambles, gorse or bracken. It might have lots of nasty plants growing on it, such as ragwort, dock and other injurious weeds of that nature. Indeed, it may be causing a problem in the locality because it is invested with Japanese knotweed or other such unpleasant aliens.
What I propose in Amendment No. 61F is that where those conditions applywhere no dissolution is availablethe local authority has the power not to take over ownership of the common but to do what the Minister said in Committee ought to happen: to exercise any rights of management of the land. As far as I can see, that is not already in the Bill. Amendment No. 61E merely gives the appropriate national authority instructions to issue guidance to local authorities on the exercise of their powers to take action over unclaimed land. I know exactly what the Minister will say to me in response, because it is what she said to me in response to guidance on action over unauthorised incursions on common land, so I tell her in advance that I accept what she says about that. If she says it again positively here, I shall be delighted. Some of us will be watching and, if the guidance does not appear in a satisfactory form, we will use the appropriate methods to hound the Government until they provide that guidance.
The real question here is, who will manage the vegetation, especially, but also the other aspects of unclaimed commons where there is no owner and where the other available options either do not apply or are inappropriate because there is no unauthorised incursion? I look forward to hearing the Minister's reply to an important question that is so far unanswered. I beg to move.
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