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Baroness Byford: My Lords, I rise briefly to thank the noble Lord, Lord Greaves, for raising this issue, which we debated in Committee. I have two questions. He is quite right to ask: if those unclaimed commons are left, who has the right to put things in good management order—good working order? He suggests that that should be the local authority. If we then define who it is, my second question is: who will pay?

Baroness Farrington of Ribbleton: My Lords, for a moment I thought that we had strayed into an Unstarred Question, when we got into bracken and hogweed. Speaking to Amendment No. 61E, I am happy to give the noble Lord, Lord Greaves, an assurance. We will provide advice to local authorities on the use of their powers under Clause 45 and, indeed, on the use of their powers under the Bill generally, in a circular that we intend to publish as part of the implementation programme following Royal Assent. As I said, and as he recognised, in the context of Amendment No. 57A, we do not need to take any additional powers to do that and we fully intend to do so.
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We believe that Amendment No. 61F is unnecessary. Clause 45 already confers on local authorities powers of protection for unclaimed common land. Where something more is required, three options are available. First, the authority may wish to help facilitate the establishment of a commons association to manage the common. If the common has ceased to be agriculturally active, there is no reason why the authority should not be represented on the management committee. Secondly, the authority has powers to create a scheme of management for the common under the Commons Act 1899. Those approaches would confer the sort of management powers which I think the amendment proposed by noble Lord, Lord Greaves, is leading to.

The third option is in response also to the noble Baroness, Lady Byford. The local authority may consider taking the land in hand and managing it as if it were the owner. We believe that some parish councils have taken such an approach with common land and that our solutions for management of unclaimed land are adequate. As I have demonstrated, they provide several means whereby better management may be secured through local authority involvement. We do not feel that it is necessary to strengthen the powers of local authorities .

Lord Greaves: My Lords, is the Minister saying that local authorities already have the power that I seek to give them in this amendment? If so, within which enactment do they have that power? She said that the third option was that a local authority could simply take over a disused, unkempt and overgrown common and manage it. What power do they currently have so that they can do that?

Baroness Byford: My Lords, I am grateful for the Minister's comment concerning my intervention. One of the problems at local government level, particularly as regards improvements of rights of way following the CROW Act, is that there is not enough money to enable local authorities to do what they are supposed to do. One of the difficulties is that the more central government pass responsibility down to local authorities, although they are happy to undertake it, the more there has to be financial support to enable them to undertake it.

Baroness Farrington of Ribbleton: My Lords, I cannot cite exactly which law and Acts confer those powers. In local government, it is often a chain of Acts. However, some parish councils already take an approach such as this with a view to common land where it was unaware of an owner. Therefore, it has already happened. It is not that we need additional legislation in order for it to happen. I will write on the details of the various Acts which have given local authorities those powers.

Baroness Miller of Chilthorne Domer: My Lords, I wish to clarify the point raised by the noble Baroness, Lady Byford. The Minister said that local authorities have the power. Under Amendment No. 61F in the
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name of my noble friend Lord Greaves, they would be able to apply for agri-environment schemes presumably to help with resource costs. I assume that the Minister is including that power in her reply.

Baroness Farrington of Ribbleton: My Lords, I would need notice of that question because of the issue of ownership of land and when it could be established. I would not feel at all confident in agreeing with the noble Baroness. It is a complex legal area and I would want to take detailed advice on it.

The Duke of Montrose: My Lords, it seems to me that before you can enter an agricultural environment scheme you have to have an agricultural holding number and I am not sure that the local authority would have the appropriate number.

Baroness Miller of Chilthorne Domer: They might have, my Lords. A number of them have county farm estates and other landholdings and because of sites of special scientific interest and so on.

Baroness Farrington of Ribbleton: My Lords, adopting a different hat, we are on Report.

7.15 pm

Lord Greaves: My Lords, I was about to comment that we are perhaps fortunate that the Minister is the Minister and not the Whip. But I think that we were all aware of what we were doing and were teasing her a little. I am very interested in what the Minister has said. I shall withdraw Amendment No. 61E and look forward to seeing the advice when it arrives. As regards Amendment No. 61F, I am very clear that the Minister has told the House that this is not necessary because local authorities already have the power that I seek to give them. The Minister is unable to give us absolute chapter and verse because it involves arcane and complex matters that are hidden in local government law. But parish councils do it. I know that parish councils do lots of things. I am not sure that they worry too much about whether what they do is within their powers or not.

Nevertheless, what happens to commons which are not claimed is an important matter. They might be big or small. They might be near the middle of a village where they might be taken over as a town green. Who knows? They might be very remote and out of the way. If we are trying to sort out commons legislation for the next 40 years or whatever and come to a definitive position on who is registered on them, who manages them, how they are looked after and so on, this has to be bottomed properly. I look forward to receiving the Minister's letter. I hope that that will be the end of the matter and that we and our friends elsewhere, including the House of Commons, will be satisfied by it. This is another issue that will go with the Bill to the House of Commons, but it would be very nice to settle it here before we send it. It is complicated, but it is very important. On that basis, I thank the Minister for her comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
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[Amendment No. 61F not moved.]

Clause 46 [Powers relating to unauthorised agricultural activities]:

Baroness Farrington of Ribbleton moved Amendment No. 62:

The noble Baroness said: My Lords, Amendment No. 62 responds to the arguments put to us in Grand Committee that the Bill should allow only the national authority—not other specified bodies—to take action under Clause 46 against damaging and unauthorised agricultural activities. That is the effect of the amendment. Having carefully considered the matter, we concluded that giving the power to one authority in each country will be likely to encourage consistent use of the power. We hope the amendment will prove welcome to noble Lords.

Amendment No. 63 replaces one of the criteria that governs when this power can be used. Again, it does that in response to persuasive points made in Grand Committee—notably by the noble Lord, Lord Rotherwick. For the current requirement that unauthorised agricultural activity must be detrimental to,

before action is taken, the amendment substitutes a requirement that the activity must be detrimental either to the interests of the occupier or anyone else with rights over the common or to the public interest in the common.

Before opting for an amendment in this form, we considered carefully the arguments for linking this formulation to the one used in Clause 31(1) relating to the functions which can be given to a commons association. We concluded that this would not fully cover the situations in which this power might be required. Our amendment allows action to take place to stop unauthorised agricultural activity where the activity would damage the interests of rights holders. It would also ensure that where unauthorised agricultural activities were detrimental to the public interest, it would be possible to act. Amendment No. 65 is entirely consequential on this amendment, while Amendment No. 71 defines "the public interest" for this purpose in the same terms as used elsewhere in the Bill. I beg to move.

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