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The Duke of Montrose: My Lords, we welcome those government amendments. In particular, we are glad to see the end of the previous definition about sustainable agriculture. We are better without that. Government Amendment No. 71 is a welcome response to our debate in Grand Committee on the nature of public or private interest. It is reassuring that a clear definition of the public interest has been included and to see that both private interest and public interest are represented equally in this part.
Lord Livsey of Talgarth: My Lords, we too welcome these amendments. It is nice to be able to agree so
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wholeheartedly with what has been done. I am particularly pleased with government Amendment No. 70. Indeed, we had already written an amendment that was almost word-for-word the same. We believe that the responsibilities lie where they should, with the appropriate national authority. It has the expertise to judge many of these issues. We are grateful for what seems to be a satisfactory conclusion to our thoughtful debates in Committee. Many points were made and we are glad to see that they have been accepted.
Lord Rotherwick: My Lords, I welcome the amendments that are included in this group that have been tabled in response to my amendments, especially in the light of the fact that they remove the unpalatable words, "sustainable agriculture", and bring greater clarity to this part, which is what I sought. I thank the Minister.
Lord Tyler: My Lords, I want to add my congratulations to the ministerial team. Earlier I failed to refer to the specific reference to archaeological remains and historic interest in the new version of Clause 43. It appears again here and I am delighted. I know that a great many other people who have been concerned about this point will also be very pleased.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton moved Amendments Nos. 63 to 71:
"(c) the activity is detrimental to
(i) the interests of persons having rights in relation to, or occupying, the land; or
(ii) the public interest." .
Page 26, line 11, leave out "relevant" and insert "appropriate national"
Page 26, leave out line 19 and insert "matters specified in subsection (1)(c)(i) and (ii);"
Page 26, line 23, leave out "relevant" and insert "appropriate national"
Page 26, line 29, leave out paragraph (a).
Page 26, line 36, leave out "a relevant" and insert "the appropriate national"
Page 26, line 43, leave out "relevant" and insert "appropriate national"
Page 27, line 1, leave out subsection (8).
Page 27, line 12, at end insert
"(9A) The reference in subsection (1)(c)(ii) to the public interest includes the public interest in
(a) nature conservation;
(b) the conservation of the landscape;
(c) the protection of public rights of access to any area of land; and
(d) the protection of archaeological remains and features of historic interest."
On Question, amendments agreed to.
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Clause 51 [Power to amend enactments relating to common land or greens]:
Baroness Farrington of Ribbleton moved Amendments Nos. 72 to 73:
On Question, amendments agreed to.
Clause 52 [Power to amend enactments conferring functions on national authorities]:
Baroness Farrington of Ribbleton moved Amendment No. 74:
On Question, amendment agreed to.
Lord Greaves had given notice of his intention to move Amendment No. 74A:
"ADVICE ON OPERATION OF ACT
Natural England, in England, and the Countryside Council for Wales, in Wales, shall advise the appropriate national authority on the operation of the Act, and shall in particular from time to time report on the effectiveness of commons associations established under Part 2 in relation to
(a) the discharge of their functions, and
(b) the extent to which they have had regard to the public interest in discharging those functions."
The noble Lord said: My Lords, I think that the arguments behind this amendment have been dealt with thoroughly. I shall therefore not move the amendment.
[Amendment No. 74A not moved.]
Clause 58 [Interpretation]:
Lord Livsey of Talgarth moved Amendment No. 74B:
(a) the Metropolitan Commons Act 1866 (c. 122);
(b) the Commons Act 1876 (c. 56);
(c) the Commons Act 1899 (c. 30);
(d) the Commons Act 1908 (c. 44);
(e) the Law of Property Act 1925 (c. 20); and
(f) all other relevant Acts relating to access on commons and town and village greens, whether public, local, personal or permissive."
The noble Lord said: My Lords, this amendment arises from an extremely interesting debate in Committee on access. Noble Lords will recall that I tabled an amendment on the lines of the beginning of the amendment now before us. It mentioned only,
The earlier amendment finished at that point. Both my noble friend Lord Greaves and the noble Baroness, Lady Farrington, chided me for being so selective
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which is the best way to describe the situationin choosing to quote only the Countryside and Rights of Way Act 2000. I have discussed this with a number of people. My revised amendment tries to ensure that anyone reading what will be the Commons Act 2005 will be able to find in this clause
Lord Bach: My Lords, it is likely to be the Commons Act 2006.
Lord Livsey of Talgarth: My Lords, I understand that the noble Lord is not into point scoring, but I read in the Bill that this is to be the "Commons Act 2005". I may have been looking at the wrong version; perhaps it said that only in its first form and that it was amended in Committee to refer to "2006". I think that it is worth checking.
The new amendment casts the net wide. I have taken on board the points made by my noble friend and the noble Baroness in Committee that a considerable amount of additional access is permitted through previous Acts of Parliament and other lawful means of access. Noble Lords will see that Amendment No. 74B now includes references to the Metropolitan Commons Act 1866, the Commons Act 1876, the Commons Act 1899, the Commons Act 1908 and the Law of Property Act 1925. Paragraph (f), in trying to take the broadest account of what was said in Committee, states,
It would be great if people could check the definition of "access". They could now find it in this Bill so far as common land is concerned. I know that access is mentioned in passing in other parts of the Bill, but here they would be able to check precisely on their rights. Without more ado, I beg to move.
Lord Bach: My Lords, this amendment would introduce a definition of the word "access" by reference to a number of previous Acts. When the noble Lord tabled an amendment on this subject in Grand Committee, his concern was to ensure clarity about the type of public access referred to at various points in the Bill. At that stage he had in mind to refer in his definition only to CROW access, but he has now suggested a more broadly framed definition. In my letter to noble Lords dated 24 November, I explained why we do not favour this approach and I shall run briefly through the reasons.
Essentially, our difficulty is that we disagree that a generic definition would be helpful. In fact, we think it would be positively unhelpful. The reason for this is that each time we use the word "access" in the Billand currently it has eight separate mentions in the Bill as amended so farwe use a formulation to fit that particular context. Where they are different, they are different for a reason.
Four references form part of the identical inclusive definitions of the phrase "the public interest" that appear in Clauses 16, 31, 39 and 46, which we have just amended to include this definition. The fifth reference avoids impacts on existing access rights by any order
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we may make under Clause 36 to amend local measures relating to management of common land. Two references relate to works on common land. One helps to set the scope of the works control system under Clause 38, while the other reference forms one of the grounds on which an order under Clause 43 may give an exemption from the requirement for approval for works. We dealt with the last reference when we considered Amendment No. 58 earlier.
As I say, these formulations are different for a reason. To take the example that best makes the point, the reference in Clause 38 to works preventing or impeding access is not a reference just to rights of public access, it is a reference to access of any description whateverby statute, by custom or tradition, by commoners for the purposes of exercising their grazing or other rights, and so on. It also includes access to the subsoil of the common, so that any new artificial surfacing is also likely to be caught. This was the formulation used in the Law of Property Act 1925 and we intend it to have the same meaning in the Bill.
It would be unfortunate if we were inadvertently to alter the focus of the works control system through a desire to introduce a generic definition of "access" into this general interpretation clause. We believe that it would constrain the meaning of the word in a way which I know is neither intended nor would be helpful. That is why I welcome our short debate on the question of definition, but on this occasion I believe that the Government are right.
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