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Commons Bill [Lords]

Volume 448: debated on Thursday 29 June 2006

As amended in the Standing Committee, considered.

New Clause 1

Vehicular Access

‘Section 68 of the Countryside and Rights of Way Act 2000 (c.37) shall cease to have effect.'. —[Barry Gardiner.]

Brought up, and read the First time.

With this it will be convenient to discuss Government amendments Nos. 110 and 111.

The amendment repeals section 68 of the Countryside and Rights of Way Act 2000—the CROW Act—in line with the discussion in Committee. Amendment 111 is consequential; the long title of the Bill must itself be amended because section 68 applies to some land other than common land and town or village greens, so its repeal falls outside the scope of the present long title. Section 68 was enacted during the passage of the CROW Act. It was designed to deal with a problem that had arisen through case law for householders who accessed their homes by vehicle over areas such as commons or greens. Section 68 has now become redundant for legal reasons, and repealing it will avoid any mistaken impression that the section has a residual role. We consulted publicly about doing this and will publish a report in due course on the findings of that consultation.

I confess that I am puzzled by this group of amendments. Obviously I am very familiar with the debates that we have had on the issue of access over common land and village greens, and the work that was done by my right hon. Friend the Member for Bracknell (Mr. Mackay) and others to try to resolve the problems, but I am puzzled about why it is necessary to abolish section 68 of the CROW Act. I hope that the Minister can clarify the reason.

I am very much aware of the House of Lords judgment in Bakewell Management Ltd v. Brandwood and it is my understanding that it is on that basis that the Minister has been advised that section 68 should be repealed. However, it has been put to me that if we remove section 68 and the possibility of being granted a statutory easement thereunder, we are in effect reverting to the old arrangements involving a ransom payment, which were precisely what section 68 of the CROW Act was intended to overcome, because, as a result of the repeal, the landowner might then be in a better position than before to make a charge for a house owner driving over the land to gain access to his property, and might take all necessary steps to stop an easement being acquired over it, in order to keep his options open. That was not the intention of the Government, or indeed the Opposition, when section 68 of the CROW Act was enacted and I do not understand why we need to repeal it now.

The Minister said that the section has become redundant for legal reasons, but we do not know what those are. Indeed, it has been put to me that there are no legal reasons for abolishing it. Not impossibly, a householder might actually prefer, notwithstanding having made a payment, to have the grant of a statutory easement under section 68 than to have it prescribed under common law, because of the problems of producing evidence of the use and of getting his title right. To remove that possibility is also unhelpful to householders.

It has been put to me that if we remove section 68, we are in effect reverting to what I understand was called the Hanning v. Top Deck Travel era—with the illegality bar removed—when, for example, a commercial company claimed to have acquired the prescriptive right to drive a double-decker bus over a common, but without being able to do anything effective about it. It is important to remember that section 68 was enacted precisely to address that sort of situation by providing that there should be no vehicular easement to drive over common land, except as provided by section 68. That is an important protection for common land. Why does the Minister want to abolish section 68? What is it about the case to which I referred—Bakewell Management v. Brandwood—that he believes makes it unnecessary?

The argument is that a House of Lords judgment cannot abrogate a statute that this House has passed; it can only interpret it. When we enacted section 68, the House decided that a payment should be made and that there should be no free easement in situations in which Parliament has resolved that there should be a payment. I do not think that anything has occurred to alter Parliament’s view. Following that logic, section 68 is not redundant. The House of Lords does not have the power under the constitution to abrogate a statute. Section 68 of the CROW Act was, in any case, not a pleaded issue in Bakewell Management v. Brandwood. It was not even part of the case. The observations of the House of Lords in that reported judgment, as far as section 68 and the CROW Act are concerned, did not form part of the ratio decidendi—the argument at the end of the case. The contention is that section 68 is not therefore redundant. In fact, it constitutes the only means that the House has provided whereby an easement can be acquired to drive over a common. I hope that the Minister will come back with some more information as to why he believes that what he wants to do is necessary. We all agree with what we were originally trying to achieve, but I am unclear about why it is necessary to abolish section 68 to try to do that. By abolishing section 68, the Minister might be creating more problems than he thinks.

I am glad to have the opportunity to respond to the hon. Gentleman’s questions, because it is important that these matters are clarified. The section and the regulations made under it were enacted because of the impact of the 1993 judgment known as Hanning v. Top Deck Travel. Before that case, it had been thought that home owners who had, for a sufficiently long period, driven across land such as common or green to gain access to their property had acquired a legal right to continue doing so by virtue of prescription or long use. The Hanning case held that that was not the position, on the ground that a legal right to continue doing something cannot be acquired by virtue of actions that involve committing an offence, and road traffic legislation makes it an offence to drive without lawful authority on land that is not a road. In the wake of that case, a significant number of householders around the country were asked to pay large sums of money to continue to drive to their own property over areas such as commons or greens.

Section 68 was brought about, late in the passage of the CROW Bill, to provide a means by which the payments necessary to secure easements for this purpose could be capped. I want to stress that. Section 68 was not enacted to prevent prescriptive claims of rights of way. It was enacted to cap any payments that, under previous case law, were required to establish an easement. The subsequent House of Lords ruling in the Bakewell Management case in 2004 overruled the Hanning judgment. It confirmed that in circumstances in which the owner of a common or green could, by granting permission to a householder, have made their use of the land for vehicular access lawful, there is no bar on the householder relying on their actual use, without such express permission, to establish the prescriptive right of access.

The reason for enacting section 68, therefore, has disappeared. Where long-standing vehicular use has taken place on land, it is usually the case that the landowner could have given permission for the use so as to prevent its constituting an offence. In such a case, the use would equally be sufficient to create a prescriptive right independently of section 68. If in a particular case, because of some other legislation, it would be an absolute offence to drive across a common or green or to do so in a particular way and the owner has no power under the legislation to grant permission for that use so as to disapply the offence, a right of vehicular use cannot be created at all. We believe that such cases are exceptional, but, where they arise, section 68 has never assisted a householder who has unlawfully been using the common or green for vehicular access and therefore its repeal will not make any difference to that position.

Even on village greens, where a residual role for section 68 was initially alleged following Bakewell, we have concluded that there is no circumstance in which the section can help a householder to regularise his use of a vehicular track to his house over common or other land. If the particular driving does not cause injury to the green and the owner of the land could lawfully give permission to drive over the land in the way that the householder has done in past, such use will have been capable of creating a prescriptive right under the Bakewell principle. We do not consider that any special provisions are needed for greens. Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 are both concerned with injury to the green. In our view, whether or not driving across a green in a particular way contravenes those provisions would be a matter of fact and of degree to be decided on the circumstances of individual cases. If driving does cause injury to the green, section 68 does not reduce the strict protection greens enjoy, which would prevent an easement from being granted at all. I hope that that clarifies the matter and satisfies the hon. Gentleman.

I apologise to the Minister, because I have been troubling him quite a lot in the past few days, but will he clarify the situation of my constituent whose house is on the edge of a village green and who has created a driveway across the village green? Some years ago, before the CROW Act, he was in considerable difficulty, because the parish council nominally owned the green and was seeking quite a large sum of money to allow him the right of way. Would the fact that he has built a drive across the green constitute damage and would he get any relief from the changes?

I hesitate to pronounce from the Dispatch Box on an individual case without knowing the specific circumstances. If the hon. Gentleman cares to write to me with the specifics, I will do my best to give him a written response that may be helpful.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 2

Stock Proof Fences

‘Occupiers of land used for any purposes adjacent to commons on which there are grazing rights must provide and maintain a stock proof fence against the common.'. — [Mr. Roger Williams.]

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

It is within the law that an owner of livestock is responsible for that livestock and any damage that that livestock causes. However, there has been a practice—certainly in the areas that I represent—that people who occupy land that is adjacent to and surrounding commons should be responsible for erecting a stock-proof fence and maintaining it in such a condition as to prevent stock leaving the common and gaining access to the land that those people occupy. There is some case law to support that, including a case involving a lady who had a cottage and garden that adjoined a common. Stock entered the garden from the common, causing some damage, but it was found that the owner of the livestock was not responsible for the damage because the lady should have erected a stock-proof fence and maintained it in good enough condition. I think that the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) will raise another case.

We have particular concerns about the situation that arises when forestry land abuts a common. The owner of a forestry might think it prudent to maintain a fence during the time that the forest and trees are becoming established, but when the trees reach a size at which they should not be damaged by livestock, he or she might allow the fence to become derelict. That would obviously put the owners of livestock on the common at a huge disadvantage because the livestock could stray over a great area. We believe that there have been examples of the owner of a forestry selling it on without putting a duty on the future owner to maintain the fence. The situation is causing great aggravation.

The situation does not affect only forestry land. Quite properly, and with appropriate planning permission, industrial land sometimes adjoins a common. The fact that livestock can enter industrial premises and go on to industrial land, where lorries might be moving, is obviously unsatisfactory.

Many people believe that it is a legal duty to fence against a common. We have tabled the new clause to find out the Minister’s attitude to the situation and determine whether anything in the Bill could clarify the situation and ensure that people can use and graze commons quite properly with the guarantee that their livestock would not cause damage, or be damaged, by straying.

The hon. Member for Brecon and Radnorshire (Mr. Williams) has detailed the concerns that are prevalent in many parts of Wales—and, indeed, beyond. However, the problem is perhaps more obvious in Wales because it has many urban commons. Such commons, in valley areas at least, immediately abut large population areas.

One of the problems was brought home to me quite forcefully earlier this week when I visited Blaenau Gwent and met a group of farmers. This point will be of no conceivable political use because voting is taking place today, but I feel obliged to mention what I was told and will do so, albeit with your permission, Mr. Deputy Speaker. The group farms the upland common; with valleys being valleys, people tend to live on the bottom part. People—young people in the main—go up the hills with little 4x4 tractors and scrambling bikes. They pull down fences to gain access, and that is the root cause of the problem because it obviously allows sheep to stray. However hard the farmers try to maintain stock-proof fences, they are unable to do so because as soon as they carry out work, another unauthorised gap appears further down. The farmers face a terrible situation. Some of them told me that they now send far fewer sheep up the hill than before, which is to their own detriment, because of the vast number of problems that occur. However, the public see the situation as a nuisance because straying sheep are a nuisance.

The Labour party’s answer to the problem is:

“Hit irresponsible farmers where it hurts—in the pocket!”

According to the leaflet that it has produced in Blaenau Gwent, the Labour candidate suggests that farmers who own straying sheep should be given fixed penalty fines on the spot. Of course, farmers always walk with their sheep wherever they are—that just shows how much that particular candidate knows about farming! However, having made that cheap political point, I will move on to a more substantial one.

I hope so.

The hon. Member for Brecon and Radnorshire highlighted another serious point. More and more stands of trees are being sold on by the Forestry Commission. The commission had a responsible attitude to fencing in, but some of the commercial concerns to which the trees are sold do not quite have the same feeling about their responsibility to fence. As the hon. Gentleman rightly said, such stands are often sold on without an obligation to fence, so once the new owners have taken the trees away, or even before then, they do not bother to carry out maintenance.

One particular owner that is slow at coming forward to deal with its legal responsibilities on fencing—it is probably the worst that I know of—is Railtrack. Railtrack must be named and shamed every time one wants a fence to be put back. It will do anything to avoid spending on fencing, yet we know how many sheep are killed each year on railway lines, which can often cause serious accidents. A further problem arises due to the fact that redundant coal pits and steelworks often abut common land.

I am grateful to the hon. Member for Brecon and Radnorshire for raising such a serious matter—I was pleased to sign up to the new clause. Mr. William Jenkins and the other farmers in Blaenau Gwent were anxious for the matter to be raised. I told them that it was a bit late in the day, but we should discuss such a substantial point and receive a response to it.

I hope that the Minister will respond in due course because the situation is not only difficult for the commoners, but an animal welfare matter, given that the animals that stray often get killed. I hope that he will be able to give us some comfort about whether any aspect of the Bill could assist commoners who are in such a position. They do not want to receive telephone calls telling them that their sheep are straying, but, with the best will in the world, if their fences are knocked down, what choice do they have? As for the Labour candidate, Mr. Smith, who said that we need on-the-spot fines, any fool knows that we have existing legislation to cover that—the Animals Act 1971. I ask the Minister to address the long-standing problem, as I am sure that he will do in his usual manner.

New clause 2 would impose a general requirement on the owners of land adjacent to a common to fence against the common, which is to maintain an effective boundary to prevent stock from straying from the common on to their own land. Let me begin by saying that I have a good deal of sympathy with the objectives of the new clause. A worthwhile issue has been raised and I am happy to respond to the points that have been made.

In our view, the new clause is not far from representing the existing position in common law. I believe that the hon. Member for Brecon and Radnorshire (Mr. Williams) was alluding to Egerton v. Harding, a case in the Court of Appeal in 1974, in which it was found that it was perfectly proper that a customary right to fence may exist. It is perfectly probable that on most commons in England and Wales, there is a customary law for adjoining property owners to fence against the common. Customary law is the custom of a locality that has existed since time immemorial. The courts will enforce such law, if it can be proven. Typically in such a case, several elderly farmers would be brought before the court to testify that they and their forebears had always considered it to be the practice to fence against the common. Indeed, nearly all our upland commons are surrounded by stone walls, some of which are of a considerable vintage, that have long been maintained by the owners of the adjoining land.

Of course, the hon. Gentleman would say that it can be expensive to prove the custom in court and that few people might be likely to take up the challenge. I acknowledge, too, as he suggested, that in recent years, some landowners, especially the owners of land that is no longer in agricultural use, tend to presume the contrary view and believe that it is the responsibility of commoners to stop their stock from straying off the common and on to adjacent land. That can sometimes give rise to ill-feeling in local communities when sheep get into householders’ gardens. Such problems are especially acute in parts of south Wales and the valleys where the adjoining land is, or was, in industrial use and the old customs are difficult to enforce.

With specific and, I hope, non-party political reference to the comments made about Blaenau Gwent, I understand that there appears to be a problem there. As I understand it, that partly relates to a minority of farmers allowing fences to deteriorate where there is a question over the ownership or responsibility for the fencing. There is also the matter of the fencing being cut by illegal motor cyclists who are trying to get access to open spaces. There is a lack of clarity about the extent to which off-roaders and farmers are therefore responsible for straying animals.

Blaenau Gwent is dealing with stray sheep and, I think, horses, by impounding them, identifying them and contacting owners to collect them. The council is not legally obliged to do this, and it is a financial burden. With this in mind the council is proposing a byelaw to deal with straying sheep. I understand that no definite measures have been decided upon to date. Nor are we clear what powers would be used to make the byelaw or, indeed, whether it would be ultra vires.

It often happens that people move into a rural community. They are unaware of customs and traditions and take objection when they wake up in the morning and find local sheep grazing at their front door. They naturally assume that the farmer must be at fault. On most commons, it is not the farmer who is responsible for fencing against strays. Responsibility lies with the householder.

As I have indicated, I have considerable sympathy with the purpose of the amendment. The difficulty is that while customs are believed to be widespread and perhaps commonplace, it cannot be assumed that they are universal. The new clause, if accepted and implemented, would be unfair in relation to common land where there is no such custom. We have no way of distinguishing where the custom applies and where it does not. That is not our role: it is the role of the courts.

The hon. Gentleman is responding in the manner that I hoped he would, which is reasonably and with a great deal of thought.

I am a lawyer. Court proceedings are expensive and sometimes take a long time. Is there something within the Bill that would allow a forum to be established, if and when individual cases should be almost evaluated, whether or not there is a custom, et cetera? Does the Minister understand the point that I am making? I am talking about an ex officio court or a forum of some sort, that would allow for disputes to be settled within the ambit of the Bill.

I understand the hon. Gentleman’s question.

Commons councils, as I hope that we will get to call them if Government amendment No. 17 is agreed to, may be given the function of establishing and maintaining boundaries under clause 31(3). If a council is given this function, it will not become liable to maintain fences around the common. The provision will enable commons councils to establish fences where they are needed, providing that consent is obtained. The provision will enable a council to maintain fences where adjacent owners are absent or are creating management difficulties by not keeping fences in good condition.

Commons councils will also have powers to do things ancillary to their functions. We would expect a council to be able to bring an action to enforce a custom to fence if necessary. Fundamentally, I believe that there is a distinction between the legislature and the role of the courts. It is the role of the courts to establish whether custom applies in given circumstances.

I cannot accept the amendment, but I hope that the hon. Gentleman will receive what I have said as a helpful statement of our view of the law.

I thank the Minister for his response and the way in which he expressed it. There is a difficulty in engaging in legal activity based on custom and practise. There is also the expense that that would entail. The aim behind the new clause was to rule out doubt and to give those who own property adjacent to a common notice that they would have responsibility, perhaps through a search before purchasing the property. I understand the Minister’s difficulty.

The Bill is about the best use of commons and greens, including grazing. Some commons and some commoners find it difficult to exercise their rights and graze commons because of lack of fencing and given the expense that establishing fencing on their own would incur. The Minister has made it clear that on a number of commons people could establish the duty of adjacent landowners to erect fencing. That will give some comfort to commoners and commoners’ associations in future. Given the Minister’s reply, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 5

Land to which Part I Applies

With this it will be convenient to discuss the following: Government amendments No. 2 to 4, and Government amendment No 11.

Amendment No. 116, in page 9, line 17 [Clause 16], at end insert—

‘(cc) the effect of any release or exchange in conjunction with the effect in relation to that land of any other release or exchange land for which consent has previously been given;'.

Government amendments Nos. 12, 13 and 15.

Government amendment No. 1 is a consequential change that is necessary because of amendments that we are making to schedule 2, which we shall come to shortly. The amendment ensures that part 1 of the Bill will apply to land exempted from registration by order under section 11 of the Commons Registration Act 1965. The amendment will have no immediate effect on the excepted commons, which cover about 1,000 hectares and which are listed in the annex to the explanatory notes. However, it will ensure that excepted commons may be brought on to the registers under amendment No. 95. and so help to ensure that the registers are properly comprehensive on what is and what is not common land.

Government amendments Nos. 2 to 4 and No. 11 make some minor amendments to clarify references to land in part 1. They ensure that in each place where an amendment is made—clauses 7, 15 and 16—a reference to land is taken to mean the land in England and Wales other than in the New forest, Epping forest and the forest of Dean. This approach is consistent with similar references elsewhere in the Bill.

Without the amendments, there was a small risk that an application to register a green under clause 15, to vary a right of common under clause 6, or for exchange under clause 16, could cause land to be put forward for registration which was actually already unregistered common land in the areas exempted from registration under clause 5. These amendments resolve that risk.

Government amendment No. 12 is a minor and technical provision that secures greater consistency. It removes a redundant reference to part 1 of the Commons Act 1899, which is a form of words not used elsewhere in the Bill.

Government amendment No. 13 clarifies that the powers to correct mistakes in the register under clause 19 extend to mistakes made under the Commons Registration Act 1965. Given the many mistakes which occurred under that Act, it seems sensible to put the matter beyond doubt.

Government amendment No. 15 clarifies that an application duly made under various provisions in part 1, which otherwise complies with any requirements imposed in the Bill or under regulations, must be granted. It makes it clear that registration authorities do not have a discretion to refuse an application other than on the criteria set out in the Bill or in regulations. The amendment does not apply to schedule 2 because the provisions in the schedule already put the requirement beyond doubt.

I will speak briefly to amendment No. 116, which stands in my name and in those of my hon. Friends.

The purpose of the amendment is to ensure that when land is released or exchanged that is not done in such a way as to hamper the de minimis element of the Bill, a build-up of release or exchange could take place that could hamper the quality and the values that people put on a particular green or common. We have debated the issue in Committee. However, it is pertinent at this stage because there is an issue whereby the nature and character of land could be changed by consequent and subsequent exchanges or releases.

I welcome the Government amendments, but I would be grateful if the Minister clarified something. In the helpful letter that he sent to most hon. Members—and certainly Committee members—he referred to the changes necessary to deal with the point I made in Committee about common land that was not registered but was common land by virtue of another enactment. Parcels of land have been classified as commons since the 13th century, but for one reason or another, some of them were not registered after the Commons Registration Act was passed in 1965. In Committee, we debated the fact that, as the law stands, they cannot be registered subsequently. Will the Minister confirm that when the Bill receives Royal Assent, all those commons, with the exception of the three that he named, can be registered under the 1965 Act as commons, so there is no doubt about their legal status in future?

Government amendment No. 95, which we will debate later, addresses the point made by the hon. Member for South-East Cambridgeshire (Mr. Paice). Turning to amendment No. 116, clause 16 enables a common or green to be removed from the register on application, usually with the provision of replacement land to take its place. That procedure will replace the current statutory exchange process under section 147 of the Inclosure Act 1845. When the national authority determines such applications, subsection (6) requires that it have regard to the interests of the legal interests in the land, the interests of the neighbourhood, the public interest, and any other matter considered relevant. The amendment would add a requirement for the authority to have regard to the cumulative effect of the proposed release or exchange, taken in conjunction with any release or exchange that has previously been consented to.

We would resist the amendment, simply because it is unnecessary. If there is such a history of deregistration affecting the land, the national authority will want to consider whether that is relevant to its determination of a new application. It will, of course, have regard to that as

“any other matter considered to be relevant”,

under clause 16(6)(d). Inserting the words in the amendment would not make any practical difference to the outcome, but I am pleased to confirm to the hon. Member for South-East Cambridgeshire that such matters will be fully taken into account when an application is considered. I hope that with that explanation, the hon. Member for Brecon and Radnorshire (Mr. Williams) will not press his amendment to a vote.

Amendment agreed to.

Clause 7


Amendments made: No. 2, in page 4, line 1, after ‘land' insert—

‘to which this Part applies'.

No. 3, in page 4, line 3, after first ‘land' insert—

‘to which this Part applies'.—[Barry Gardiner.]

Clause 13

Surrender and extinguishment

I beg to move amendment No. 112, in page 6, line 41, after ‘greens', insert ‘as attached to land'.

With this it will be convenient to discuss amendment No. 113, in page 6, line 41, at end insert—

‘in consequence only of a disposition purportedly affecting a severance of that right in contravention of section 9(2).'.

These amendments deal with commons that have been partially developed, and I tabled them for two reasons. First, we were concerned that there was a drafting error, but people who know far more about legal jargon than I do agree that there is no such error. Secondly, there is a point of principle. In Committee, in a debate on the apportionment of rights, we discussed carefully what happens when a dominant tenement is sold or split and is partially developed. Indeed, we discussed an example in which one piece of land is developed and lots of individual houses are built on it. The legislation, as drafted, would give all those houses an apportionment of the rights.

On reflection, I question whether that is right, so the principal purpose of the amendments is to challenge the Government to explain why the right of common should endure if part of the dominant tenement is no longer used for an agricultural purpose. Commons rights were originally attached to agricultural land, as we discussed in Committee—I shall not repeat all those debates today. Former agricultural land could be completely developed and the rights apportioned so that, for example, there is one sheep per house in a new housing estate. Is that logical?

The Minister may well respond that those people will clearly not exercise their right to own a single sheep, and I accept that that may be so, given all the bureaucracy that the Government have imposed on sheep owners. Rights can be transferred under schedule 1—we will come on to that later—but if the owner develops the dominant tenement and decides not to transfer the rights but to apportion them among the properties, difficulties could arise. As the Minister said, we will come on to discuss the establishment of statutory associations—I agree that they should become councils—which brings the issue of rights into play. The logic of the Bill is that all those individual owners, with perhaps one or two rights each, will all have a voice even though, in reality, they do not have any agricultural interest.

We have discussed many times in the House—indeed, the Minister referred to it himself a few minutes ago—the issue of people who move into a rural area without understanding anything about it. In the example that I gave, however, they could have a significant voice, as they would have to be consulted on the establishment of an association and, indeed, they would become part of it. A welcome later amendment would give preferential treatment to people who utilise their rights but, nevertheless, the occupants of all those houses in the example that I gave would have a say in the establishment of the association, its running and, of course, the management of the commons. I question whether that is right, which is why, despite clarification of the drafting, I tabled the amendments. It is a little late to ask the Minister to go away and think about the issue again, but I urge him at least to reflect on it, and tell the House how he will address the problem that I have identified. When rights are fragmented and many rights owners involved, how can that be dealt with by the management systems and the associations established by the latter part of the Bill? It would have been far better to use a de minimis arrangement to extinguish rights of common in those circumstances.

I was baffled when we first debated the issue, because those 50 houses might not simply have the right of grazing but other rights, such as rights of turbary. Instead of one commoner having access to peat on the land, 50 of them would have access, which would substantially change the physical appearance of the common.

My hon. Friend is right. Our debates in Committee and on Report have inevitably dwelt on grazing rights on commons, but there are many other rights. If, for example, everybody had rights of turbary to cut peat, a whole common could be destroyed by householders digging.

The situation is unfair for graziers, because in theory they must individually approach all the house owners to lease back their unused grazing rights that would otherwise revert to them automatically by the operation of the common law extinguishment. That is not in the interests of the commons or of the normal users of the rights of common.

The Minister needs to reflect on the matter. I hope that he will accept the amendment, but if he is not minded to do so, will he think through what can be done by regulation to deal with the situation that I have described?

The amendments relate to clause 13, which abolishes the principle by which rights of common may be extinguished at common law, except where rights of common are surrendered in accordance with the prescribed procedure. They are intended to ensure that the abolition of that principle is confined only to an unlawful attempt to sever rights of common attached to land.

The hon. Member for South-East Cambridgeshire (Mr. Paice) has raised the question how rights of common could be apportioned between numerous houses developed on a dominant tenement. It is certainly conceivable that a right of common may be apportioned between numerous dwellings. For example, the commons register may show that farm A has the right to graze 50 sheep. If farm A were sold to a developer, who in turn sold off 50 plots, each of which had a house built on it, each of those house owners would have the right to graze one sheep. We see nothing improper about that outcome. Certainly the owners of those houses are unlikely to exercise those rights, and the constitution of any statutory commons council established under part 2—this important point goes some way to answering the concern raised by the hon. Member for South-East Cambridgeshire—may well give preference to active commoners against inactive householders. So long as the householders are entitled to the right to graze to one or more animals, they will be entitled to exercise it.

The hon. Member for South-East Cambridgeshire has also raised the issue of ensuring that rights of common cease to apply where the dominant tenement is developed. In our view, it is correct to say that the development of the dominant tenement so that it can no longer be used for agriculture would at common law extinguish the rights attached to the land.

Clause 13(3) abolishes that principle, and we believe that that approach is both fair and consistent with present practice. The approach is fair, because it would be invidious for registration authorities to decide whether a dominant tenement had ceased to have an agricultural use. Would a house with a grazing paddock qualify to retain the rights? And what if a large garden could be converted back to grazing? The approach is consistent, because the effect of registration under the Commons Registration Act 1965 was inadvertently to break the link between the number of animals which could be grazed on the common and the capacity of the dominant tenement to over-winter the same animals—the principles of levancy and couchancy. It would be absurd to provide that a 1 hectare smallholding could have any number of rights attached to it, but that the same dwelling with only a small garden could have none.

I do not accept that that change disadvantages the owner of the common. The common will remain subject to registered rights of common, irrespective of changes affecting the dominant tenements to which rights are attached, which is a perfectly reasonable outcome. Of course, if the dominant tenement is developed for housing, it is most unlikely that the rights will continue to be exercised, which will often be to the common owner’s profit. With many lowland commons now under-grazed, the preservation of such rights will also help to ensure the retention of mechanisms through which grazing could be introduced if required.

One of the merits of the registration of rights of common under the Bill is to deliver certainty on the existence of those rights. In our view, it is not helpful if a registered right can be challenged on the grounds of some event happening off register, which means that the right has ceased to exist, although it may remain on the register. I hope that that explanation encourages the hon. Member for South-East Cambridgeshire not to press the amendment to the vote.

I am grateful to the Minister for his explanation. I am sure that he has read all the papers and knows that Conservative Members support the Bill’s objectives and its approach to apportionment. I was merely trying to identify a particular problem. I am not entirely persuaded that it is perfectly reasonable for all those individual houses to have the right to graze one sheep. Although I readily accept that it is unlikely that people will want to exercise those rights, they may resist going through the paperwork to lease them to somebody who wants to exercise them. On the Minister’s point about over-grazing and under-grazing, if the rights are to be used, the owner must lease the rights to somebody else in order to lose them, which would be a lot of paperwork for one sheep.

I accept the general point, to which we shall return on the next group of amendments. The Minister has rightly identified the issue of the creation of the association, and we may press him further when we reach the amendment on the balance between those who exercise their rights and the dozens, if not hundreds, of people who do not.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15

Registration of greens

Amendment made: No. 4, in page 7, line 30, after ‘land' insert—

‘to which this Part applies'.—[Mr. Watts.]

I beg to move amendment No. 5, in page 7, line 33, leave out ‘local inhabitants' and insert—

‘the inhabitants of any locality, or of any neighbourhood within a locality,'.

With this it will be convenient to discuss the following amendments:

Government amendments Nos. 6 to 9

Government amendment No. 10, in page 8, line 7, at end insert—

‘(4A) Subsection (4) does not apply in relation to any land where—

(a) planning permission was granted before 23 June 2006 in respect of the land;

(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and

(c) the land—

(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.'.

and amendment (a) to the proposed amendment, at beginning of paragraph (b), leave out ‘construction'.

Government amendments Nos. 5, 6 and 8 respond to the recent judgment of the House of Lords in the Trap Grounds case. In that judgment, their lordships defined clearly and unambiguously the effect of the form of words that we originally used in the Bill to describe the type of inhabitants whose long use of land may warrant its registration as a green. That original form of words, which was taken directly from the current definition in the Commons Registration Act 1965, was

“the inhabitants of any locality, or of any neighbourhood within a locality”.

Lord Hoffmann’s judgment stated that

“‘Any neighbourhood within a locality’ is obviously drafted with a deliberate imprecision which contrasts with the insistence of the old law upon a locality defined by legally significant boundaries…The fact that the word ‘locality’ when it first appears in the current definition must mean a single locality is no reason why the context of ‘neighbourhood within a locality’ should not lead to the conclusion that it means ‘within a locality or localities’.”

That interpretation accords well with the intention behind clause 15.

On Report in the House of Lords, we simplified this wording to refer simply to “local inhabitants”, because at that point there were some doubts about the likely interpretation of the original phrasing. Now that the Law Lords have resolved those doubts, we think it best to revert to our original formulation, which will ensure that this criterion for registration is understood.

Government amendments Nos. 7, 9 and 10 respond to the residual concerns expressed in Standing Committee, and since, about the impact of a new registration on any development that may have begun on the same land. Members will recall that in Committee, in response to a point raised by Conservative peers, we introduced clause 15(4)(d) to rule out registration of land as a green if the land had already been built on at 18 April 2006—the date of the amendment—despite a previous long period of use “as of right” by local people.

The hon. Member for South-East Cambridgeshire (Mr. Paice) suggested that the scope of our amendment might be too narrow. He pointed out that a situation might arise whereby a significant construction project had begun on the specified date, so that the parts of the development constructed after that date would not be exempted from registration and might be rendered unlawful if the land became registered. My ministerial predecessor, who is now the Minister for Schools, asked for some real-life examples of such a situation, but to date none has been produced. Nevertheless, we agree that it is probably best to avoid any possibility of such an outcome arising, so wherever construction works had begun on land by the date of tabling the new amendments—23 June 2006—that will rule out registration of any land that is, or will become, permanently unusable for public recreation because of works carried out under the same planning permission. That will prevent registration of the land as a green regardless of whether the initial construction works were on or off the alleged green, because planning permission might cover both the alleged green, and adjoining land that no-one claims is a green.

I am not surprised that the Government have tabled the Trap Grounds amendments, which I naturally support. I welcome the other amendments, which are the Government’s response to representations that I made in Committee. I regret that the Minister has not been given the concrete examples that he and the hon. Member for South Dorset (Jim Knight) asked for. I have spoken to the individuals and businesses who originally made representations to me, who said that notwithstanding the assurances given by the Minister and his hon. Friend, they were concerned about commercial confidentiality and therefore felt unable to provide examples. I do not necessarily endorse that stance, but that is why it did not happen.

I am particularly pleased that the Minister tabled the amendments, despite not having those examples—I know what they are, but it would be improper to describe them—because they represent a significant step forward. They deal with situations such as those that I described in Committee, whereby a development may have been started but not completed. There could be serious financial consequences for the developer if it was unable to complete a project that was a complete package, particularly if it had laid infrastructure or designed an estate, for example. I do not know whether the Minister has taken advice on this, but I suspect that the amendments will relieve him of the risk of claims for substantial damages from such developers if that had happened. That may have been another factor in persuading him to table them, but whatever his reasons, they are welcome.

I tabled amendment (a) because I should like the Minister to clarify for me, and for my hon. Friend the Member for North Shropshire (Mr. Paterson), the precise meaning of the word “construction”. In Committee, we had a discussion about the meaning of the word “building”. Although amendment No. 10 initially refers to “construction works”, paragraph (c) refers to “works”. Most of us can understand what “works” means, but some people might argue that “construction works” can mean physical walls, steel uprights, and so on. Would it include ground works such as digging foundations, the laying of drains, or the construction of security fencing around a site, which is, sadly, an essential precursor to developing a site nowadays? It might cover a whole raft of things. The Minister is conscious of the Pepper v. Hart dictum, which at this stage in the proceedings of a Bill is about all that we can rely on. I hope that he will explain exactly what he means by “construction works” and how restrictive that might be in the interpretation of the wider group of amendments, which in principle I wholly support.

Several of us said in Committee that we were keen on the creation of more village greens, and clause 15 allows that to happen. As the Minister said, the Trap Grounds case has held up some applications, but that judgment is now through.

I want to talk about a case that I mentioned in Committee—that of Keenwell in Calverton in Nottinghamshire. Local people in Calverton made an application for registration of that new green at the back end of last year. The commons registration authority, Nottinghamshire county council, decided not to pursue the registration at that stage as it was awaiting the outcome of the Trap Grounds judgment. That judgment is helpful, as is clause 15(4), which suggests that local inhabitants have a claim if they have used the land lawfully for sports and pastimes for more than 20 years. That condition is met. I know Keenwell extremely well; it is a site of some value bordered by an ancient village track.

Within the last month, the registration application has been made, and it is a case of “so far, so good”. However, the owner of the land, Langridge Homes, recently said that it had an outstanding planning permission that has lain dormant since 1972—so dormant that the planning authority, Gedling borough council, was unable to find it. A struggle has been going on in Calverton between the local people who made the application to the registration authority and Langridge Homes. That may be the kind of example that the hon. Member for South-East Cambridgeshire was looking for. Langridge Homes now wants to start developing that land to block the application.

I am puzzled as to how a planning consent that old is still extant—I should have thought that it would have expired. I was not thinking of that sort of example but of what the word “construction” means in the context of people having already started a development.

The planning permission is still relevant precisely because it is so old—new legislation that has been passed since then would mean that nowadays such an application would fall. As it is, there is an understanding that there is an existing planning application. It seems to me that clause 15(4), which allows an application where there has been 20 years’ usage, is ineffective because planning permission in respect of this land was granted before 23 June 2006. There is real tension and conflict between local people who feel that they have a just claim and a developer that has come along with a planning consent going back 30 years.

There is a subplot to this. Although at the moment the story is “so far, so good”, it is thought that the developer, Langridge Homes, does not really want to build houses on the site. It really wants to drive a road through the site, across the ancient track, Dark lane, to gain access to a more valuable piece of land, where it hopes to get a large planning consent for housing.

I was pleased with clause 15 and subsection (4), but I am not so pleased with amendment No. 10 and proposed new subsection (4A). I want to advocate strongly the case of people in Calverton for registration of Keenwell as a village green. It has been used as a village green, and is being used as one today. If amendment No. 10 is accepted, those people’s aspiration to establish it as a village green for all time falls. I think that that is disappointing. They would describe it in stronger terms.

It is a great pleasure to follow the hon. Member for Sherwood (Paddy Tipping). I am sorry that I shall put an individual case that goes the other way and that has major implications for brownfield sites. I have been lurking in the undergrowth on this Bill for the past few months, having private discussions with the Minister’s predecessor, the hon. Member for South Dorset (Jim Knight), and sending quite a lot of information, I think, to the Minister. I am grateful to my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice), who has put my point of view. I am pleased by his amendment (a) to Government amendment No. 10, which I nearly welcome entirely—my only worry is that it does not go far enough.

If you will permit me, Madam Deputy Speaker, I shall go into some detail on the case of the town of Oswestry, which has major implications for brownfield sites across the country. Oswestry’s population is 37,308, which has grown dramatically by about 11 per cent. in the past 15 years. It has four wards with the highest population density in the whole of Shropshire. On several criteria in the deprivation indicators index, they do not do well. For children’s income deprivation, Carreg Llwyd and Gatacre are in the bottom 30 per cent. in Shropshire. For older people’s income deprivation, Cambrian, Gatacre, Castle and Carreg Llwyd are in the bottom 30 per cent. Carreg Llwyd falls into the lowest 20 per cent. nationally for education, skills and training. I do not want to paint a terribly black picture of Oswestry, but there are opportunities for land development to have a major impact, particularly with regard to health.

As I said, I nearly welcome entirely amendment No. 10, but there is one project that it could jeopardise completely. There used to be an Oswestry and district hospital, which was built by benefactors in the 1930s and sadly closed, and many of the promises made about the services carrying on were not met. The primary care trust, when it was formed, had a meeting with me, and set up an inquiry into Oswestry’s health needs, which was widely welcomed. A most ambitious project emerged to build an enhanced primary care centre, which received overwhelming support by a show of hands at a packed public meeting organised by the then leader of the council, Councillor Betty Gull. The centre would collect together all the basic NHS services offered in Oswestry, but additional services would be provided. At the time, there was controversy about a maternity unit closure, but that would be brought into the town. There was also a proposal, which I called phase 3, to build a 60-bed nursing home, which would also benefit the town hugely.

The site involved is known as the Five Acre site, right in the middle of Oswestry, which used to be the shunting sidings and approach to Oswestry station. Oswestry had been the headquarters of the Cambrian railway, which closed in the 1960s. It had had substantial workshops, and it was one of the town’s major employers. The site has been a ghastly derelict eyesore ever since. It is on the main approach to Oswestry, and there are a lot of self-seeded willows and elders, as well as a large amount of scruffy rose bay, willow herb and substantial amounts of rubbish, litter and supermarket bags blowing around. Since the railway closed, however, the site has been used by the inhabitants of Oswestry as a place to walk. The issue of what should happen to the land has been one of real controversy.

The proposed development, which involves the local regional development agency, Advantage West Midlands, would be very significant. I have given some background information about the town. The RDA has already spent £2.4 million regenerating the station building, and intends to spend about £2 million on remedial work on the Five Acre site, with a further £1.3 million of transport works attached to the site. The primary care centre would cost £5 million, and the nursing home, which would also have free-at-the-point-of-use maternity and community beds would cost about £8 million. Extra housing costing about £3 million would be provided, as well as live-and-work units worth £1 million. The cream on the cake is a plan to revive the old Cambrian railway as a heritage railway, which would cost about £11 million. That brings the total to nearly £34 million without even trying. If the railway took off, bringing in a conservative estimate of 60,000 visitors, it would involve spending of about £2 million a year. Bridgnorth, for instance, brings in £8 million a year, and Minehead apparently brings in £6 million.

Order. I have been fairly lenient with the hon. Gentleman. We have a reasonable amount of background, and perhaps he could now relate it to the amendment.

I was wondering when I might test your patience, Madam Deputy Speaker, but I thought that it would be helpful for the Minister to have the maximum amount of information.

The point is that the whole project, which would be of enormous significance to the town of Oswestry and the surrounding area, depends on the status of the Five Acre site. It was the subject of a village green application in August 2004, which went to a public inquiry last October. The inspector rejected the application based on current law. That whole exercise involved more than £100,000 in legal costs. Clearly, until we clarify exactly how clause 15 will emerge from our deliberations, and what effect amendment No. 10 will have on it, there is some uncertainty. I cannot help adding that the people who put in the application are splendid—they are some of the greatest campaigners for health services, who have been out in wet, filthy weather collecting petitions. On this issue, sadly, they have been terribly misguided. However, we have a wonderful iron age fort called Old Oswestry to go and walk on.

If the project is stalled, the worry is that the primary care trust will be under tremendous pressure from other parts of Shropshire, including parts of my constituency, and that the money will go elsewhere, a chain reaction will set in, and all the projects will fall. Advantage West Midlands is seriously concerned that a precedent could be set for other brownfield sites across the country. It makes a good point that such sites are often in areas of heavy contamination and deprivation, which are often the last to be developed. Therefore, they are also the ones with the longest record of use by local residents for casual recreation, dog walking and so on. The problem is that those sites cost tens of thousands of pounds to investigate, and remedial work such as removing contaminants and preparing sites for construction can cost hundreds of thousands of pounds.

In that regard, I would really like to hear the Minister’s definition of what is meant by “construction works” in amendment No. 10, paragraph (b). I would also like an explanation of why we cannot revert to the wording of sub-paragraphs (i) and (ii), under paragraph (c), which would be the effect of my hon. Friend’s amendment (a) in removing the word “construction”. Do remedial works and clearing trees, rubbish and detritus of 50 years count as the beginning of construction? Does building a security fence, which is the prerequisite of any construction site, count as the beginning of construction works? Does carrying out an archaeological survey count? In some parts of the country, it would be unconscionable to start developing a site without carrying out serious archaeological investigations. Surely, those are an integral part of the whole construction process. If clause 15 does not allow those processes, bluntly, it will make development of those sites across the country considerably more risky and unlikely to happen.

Let me give the House an idea of the strength of feeling locally. The current leader of Oswestry borough council, Councillor David G. Lloyd, told me this morning:

“The weed-strewn, abandoned railway land in the town of Oswestry has been an economic and visual blight on the town’s landscape for decades.

The town and borough is crying out for improved health care provision and the disused railway land is the perfect location to accommodate a modern GP practice and a 50 bed nursing/care facility for which outline planning consent has been given and which would also be the hub for other essential medical and community care services.

It has the backing of the public who are frustrated by the delay caused by a handful of people who are opposed to the project.

New residential development for which planning has already been given plus a modern health village together with the former Station Building refurbished at a cost of more than £2 million would provide an attractive gateway to the town rather than the eyesore that exists at present and which has meant that some businesses bring clients into the town via an alternative route.”

Councillor Lloyd was referring to himself at that point. I know that when he takes potential investors into Oswestry he does not take them past that site because it is so off-putting—or was, until a large wooden fence was built around it.

Similarly, Oswestry borough council’s regeneration officer has said:

“when one looks at the benefit to the whole borough it would be unthinkable that this area was left to go back to the wilderness it once was. In fact since it has been cleared the vandalism in that area has decreased enormously and personally I feel if the area was regenerated, it would boost civic pride, improve the main artery into the town from the North which currently such a would be investor would come along, just promotes an area of misery and poverty not one of vibrancy and vitality.”

I should like the Minister to explain why the word “construction” is necessary. It makes the definition unnecessarily narrow, unless preliminary work of the kind that I have described—clearing a site, building a security fence and carrying out environmental tests and preparatory work—counts as part of the construction process. Most people would interpret construction in the same way as my hon. Friend the Member for South-East Cambridgeshire: starting with bricks and mortar, and laying foundations. In this instance, that is the easy bit. By far the most difficult part of the project has been getting all the interested parties together. I have attended more than 15 meetings—every two months—as well as meetings here.

Order. I think that we are well aware of the importance of the site to the hon. Gentleman’s constituents, but I ask him now to relate and confine his remarks to the amendment.

Thank you, Madam Deputy Speaker. I am trying to tease out of the Minister a definition of “construction”. The Construction (Design and Management) Regulations 1994 lists

“the preparation for an intended structure, including site clearance, exploration, investigation (but not site survey) and excavation”

as one of its criteria.

What I am saying is in complete contrast to what was said by the hon. Member for Sherwood. I have described a site that has been derelict and a complete mess for 30 or 40 years, but which according to custom has been used for casual dog-walking, and which a small number of people—I think 30 signed the petition—consider should be designated common land. That is against the interests of the 37,000 people living in the area who desperately want improved health care, job opportunities, and the regeneration that would result from tourism projects. I should like the Minister to explain clearly what he means by “construction works”. If he cannot give us an assurance, would he be prepared to accept amendment (a) and remove the word “construction”, leaving just the word “works”? He has already done that in subparagraphs (i) and (ii).

The hon. Member for North Shropshire (Mr. Paterson) and my hon. Friend the Member for Sherwood (Paddy Tipping) have given textbook examples of the difficulties that Ministers experience in having to reach decisions of this kind.

I was grateful for the way in which the hon. Member for South-East Cambridgeshire (Mr. Paice) phrased his speech. I was grateful for his clear acceptance of the progress that has been made since Committee, and of the two development-related concessions that are already in clause 15 in response to proposals of his. Each has addressed the specific problems raised. His amendment (a) seeks a third concession in relation to development interests.

Our starting point is that clause 15 strikes a carefully crafted balance between development interests and the interests of local people who have used land for recreation “as of right” over a long period. Having acted to protect construction works that have already begun by 23 June, we are now asked to weaken the requirement still further so that if works of any description have been carried out by that date, the land cannot be registered.

The hon. Member for South-East Cambridgeshire referred to a potential inconsistency, but I do not believe that that exists. He spoke of the word “construction” and the use of the word “works”. If the construction has begun by 23 June, any subsequent works—not necessarily construction works; they could be repair or remedial works—in pursuance of the planning consent would exempt the land in question if incompatible with recreational use. “Construction” carries its everyday meaning here in relation to building works. “Construction works” is intended to signify that something must have started to be built as part of the development, but it would exclude mere preparatory work such as excavating a trench for foundations or ancillary works such as putting up a security fence around the site. That answers a specific question from the hon. Member for North Shropshire.

I realise that the Minister is working from several different sets of notes—I know how it is; been there, done that—but can he clarify exactly what is within and what is outside the definition of “construction” as he understands it? It might be helpful for the record if he could give any examples of cases in which the word “construction” has been defined in law.

I shall be as clear and precise as I can, because the hon. Gentleman is right: this is crucial. I wanted to reinforce the difference between the use of the words “construction works” and the use of the word “works” on its own. “Works” would apply, under a later provision in the Bill, to repairs and maintenance rather than specific construction.

Our amendments are not about making planning consents automatically prevail over the ability to register land as a green. I hope that this goes some way towards answering the point made by my hon. Friend the Member for Sherwood. They are simply intended to ensure that registration does not constitute an effort to turn back the clock when construction works have already begun. There is a big difference between those two approaches.

It would be quite wrong for us to change clause 15 in a way that gave developers carte blanche to build houses on existing greens. That would be throwing the baby out with the bathwater. Land is only registrable in the first place under the clause if local people have genuinely used it for their recreation without permission, without force and without secrecy for at least 20 years. That is the kind of land that our ancient law of custom treats as a town or village green. It would be wrong for planning consent automatically to override that customary arrangement. That is not something changed by provisions in the Bill; it is something that is already part of the law of the land. Whether land has become a green in this way is outside the scope of the planning consideration, and is purely a matter of law.

I am following my hon. Friend’s speech carefully and I know that people living on Rennals way in Calverton will follow it even more carefully, because they have used that land for 20 years for recreation and sport. They accept, reluctantly, that there is an existing planning permission, going back to 1972. Is my hon. Friend now saying that that planning consent does not automatically overturn the application for a village green?

While it always gives me great pleasure to provoke hurrahs from Labour Back Benchers, I am aware that my response does not necessarily spread sweetness and light in North Shropshire. I assure the hon. Member for North Shropshire that I understand the seriousness of his concerns about the way in which major infrastructure developments, affecting many people, could be delayed, or put off altogether, by this situation. I understand that emotions run high—

I wish that the Minister could give me the same satisfaction as he has given the hon. Member for Sherwood (Paddy Tipping). In my case, the vast majority of local inhabitants regard the land as wasteland, which has been used by custom. Outline planning permission has been granted for the project by the relevant planning authority and substantial works have been carried out. All the surface has been cleared down to clinker, and a large security fence has been built. Substantial legal fees have been paid and archaeological and environmental tests have been carried out. I would have thought that that would mean that construction had begun, because all those activities are prerequisites of the construction process. Putting the foundations and the bricks and mortar in is the easy bit. The difficult bit is what has been done so far. Can the Minister confirm that what I have described is indeed the beginning of the construction process?

I am genuinely sorry to disappoint the hon. Gentleman, because I understand the concerns of his constituents which he has explained so well this afternoon. Were he from another party I might have accused him of putting together material for a “Focus” leaflet, but it is clear that he has worked hard on the issue in pursuit of his constituents’ interests. However, the Bill will not change the legislative landscape in that area and to do what he is asking would be to go too far.

The change would mean, for example, that a developer who had dug an exploratory hole in the middle of the land by the date could press the registration authority to reject any future application for registration out of hand, on the basis that at some point in the future the planning consent over the land might be implemented. Even if local recreational use appeared to meet all the tests in clause 15, there could be no viable application to register the land because that single hole had been dug. We do not think that that can be right. Nor did we feel when we looked at this issue that we could exempt land from registration only if the pre-construction works had been substantial. We did consider including an indicator such as “substantial”, “significant” or some such wording. However, using such language would clearly reduce the clarity of the clause, and we have not had drawn to our attention any real-life cases where substantial pre-construction works have in fact been undertaken on land that is likely to be eligible for registration as a green based on past use.

On a previous occasion, my hon. Friend the Member for High Peak (Tom Levitt) has spoken about two particular cases in his constituency where areas that have been given planning consent—at Fairfield and New Mills—have been subject to local controversy over applications to register the land as a green. The hon. Member for Ludlow (Mr. Dunne) has spoken of a similar controversy in his own constituency. Today, we have heard the hon. Member for North Shropshire on the subject of land at Oswestry. I therefore understand that such cases provoke powerful and conflicting emotions and that a real sense of frustration can be felt by those seeking to promote developments, whether for social purposes or for business reasons. But I have a responsibility to strike the right balance in this clause, and I believe we have done that.

I am grateful to the hon. Member for South-East Cambridgeshire for acknowledging the concessions that we have made so far. What we cannot do is to provide, in effect, that planning permission overrides in all cases the ability to register land as a green even if the requisite use has taken place. I therefore ask the hon. Gentleman not to press his amendment.

Given that my hon. Friend the Member for North Shropshire (Mr. Paterson) wishes to challenge the Minister, it might be helpful if I were to allow him to intervene on me—

My point is that you cannot make a further speech, so there is no opportunity for the hon. Gentleman to intervene. The Minister had sat down, so no one can intervene on him.

On a point of order, Madam Deputy Speaker. I am a bit lost. We have been debating a group of amendments with an amendment to an amendment. I could not move the amendment to the amendment until the Minister had moved his amendment. Having done so, I assumed that I would have an opportunity to reply to the Minister’s response to amendment (a), which could not have been the lead amendment.

That amendment is in the group that is under discussion and therefore it was included in that group. I apologise, but I can do nothing further to help the hon. Gentleman.

Further to that point of order, Madam Deputy Speaker. Perhaps you could give me some guidance. If an amendment to an amendment cannot be moved before the principal amendment is moved, how is it possible to move an amendment to an amendment or even to withdraw an amendment to an amendment? It stands to reason that if one wants to move an amendment to an amendment, one needs to have the opportunity.

I remind the hon. Gentleman that he spoke immediately after the Minister moved the amendments, at which time he had the opportunity to raise the points that he wishes to raise now.

Amendment agreed to.

Amendments made: No. 6, in page 7, line 38, leave out ‘local inhabitants' and insert—

‘the inhabitants of any locality, or of any neighbourhood within a locality,'

No. 7, in page 7, line 44, after ‘applies' insert ‘(subject to subsection (4A))'.

No. 8, in page 8, line 1, leave out ‘local inhabitants' and insert—

‘the inhabitants of any locality, or of any neighbourhood within a locality,'.

No. 9, in page 8, line 5, leave out from ‘paragraph (b)' to end of line 7.

No. 10, in page 8, line 7, at end insert—

‘(4A) Subsection (4) does not apply in relation to any land where—

(a) planning permission was granted before 23 June 2006 in respect of the land;

(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and

(c) the land—

(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.'—[Barry Gardiner.]

Clause 16

Deregistration and exchange: applications

Amendment made: No. 11, in page 9, line 6, at end insert—

‘(aa) the replacement land must be land to which this Part applies;'.—[Barry Gardiner]

Clause 17

Deregistration and exchange: orders

Amendment made: No. 12, in page 10, line 38, leave out ‘Part 1 of'.—[Barry Gardiner.]

Clause 19


Amendment made: No. 13, in page 11, line 35, at end insert—

‘and it is immaterial for the purposes of this section whether a mistake was made before or after the commencement of this section'.—[Barry Gardiner.]

Clause 24

Applications etc

I beg to move amendment No. 14, in page 13, line 38, after ‘Schedule 1' insert—

‘(ba) paragraph 1A or 1B of Schedule 2'.

We have made it clear that we are not prepared to countenance an unrestricted reopening of the registers under the Bill. We had an interesting discussion in Committee, and subsequently, on whether there should be a review of inflated rights registered under the Commons Registration Act 1965. Schedule 2 makes limited provision both to add land to the registers and to remove land; that is a careful balance, which the new Government amendments maintain.

Government amendment No. 95 will enable additions to the register of land that Parliament has recognised as common land, or town or village greens. It follows from an amendment tabled in Committee by the hon. Member for South-East Cambridgeshire (Mr. Paice), which we might call the “Pumfrey” amendment. The hon. Gentleman was concerned that land could have been omitted from registration under the 1965 Act, even though, by virtue of some statutory provision, it was beyond doubt common land or green. Our amendment enables those omissions to be rectified.

Government amendment No. 95 also enables the registration of land that has been statutorily allotted as recreation grounds under 19th-century enclosure awards—a facility that I am sure will appeal to my hon. Friend the Member for Sherwood (Paddy Tipping) and his correspondent, Mrs. June Perry. For example, in cases where an earlier statute may have defined the extent of a common in a plan deposited with the House authorities during the passage of the corresponding Bill through Parliament, part, or all, of the lands defined in the plan were overlooked and not registered under the 1965 Act. I believe that just such a case—at Monken Hadley common, in Hertfordshire—was identified by Mr. William Pumfrey in correspondence with the hon. Member for South-East Cambridgeshire. The amendment would provide an answer in similar cases.

Government amendment No. 14 amends clause 24 so that we have the power to restrict applications, under Government amendment No. 95, to persons defined in regulations. That might be useful where the land has since been developed.

Government amendments Nos. 100, 104 and 107 provide a further or alternative mechanism to enable the deregistration of buildings and the curtilage of buildings, where they have been present since before the land was registered. We have learned that some large commons may have been registered so as mistakenly to include cottages or gardens abutting the common, even though there was an inquiry into the registration. It seems that the error may have gone unnoticed, or that the commissioner was unable to correct the error if no timely objection had been made. It may not be possible to deal with such mistakes under paragraphs 4 or 5 of schedule 2.

These amendments enable the deregistration of such land, but only if it can be shown that the land was covered by buildings, or the curtilage of buildings, at the time of the original provisional registration and continuously up to the date of determination of the application. The amendments provide the right balance in enabling long-established homes and gardens to be deregistered, without calling into question the registration of common land generally, where the registration was properly inquired into by a commons commissioner.

Government amendment No. 107 is consequential on Government amendments Nos. 100 and 104, and deletes from existing paragraph 5 a criterion for deregistration of greens, which is now essentially replicated in new paragraph 4A to schedule 2.

Government amendments Nos. 96 to 99, 101 to 103, 105, 106 and 108 enable changes to the register under schedule 2 on the initiative of the commons registration authority itself, rather than in response to an application. That approach is consistent with the way things are dealt with elsewhere in part 1. It will enable local authorities to deal with problems of which they are already aware, and in respect of which it would be in the public interest to act, regardless of whether an application is made by, for example, the landowner.

Government amendment No. 16 is purely consequential. It applies clause 24 to proposals made by registration authorities under schedule 2, so that regulations may be made about the process to be applied to a proposal.

I support this group of amendments and I simply want to thank the Minister for accepting what he described as the “Pumfrey” amendment. As he knows—I am sure that he has read all the paperwork—Mr. Pumfrey has been an assiduous follower of our proceedings and has come up with a number of amendments, one of which we have already debated. Amendment No. 95 is especially important, as it applies to the common in which Mr. Pumfrey has a particular interest. I apologise to the Minister for my earlier, slightly senile moment, when I discussed that amendment in connection with an earlier group. That happened because of confusion between the amendment numbers that the Minister gave in his letter to me, and those that appear on the Order Paper.

I am grateful to the Minister for tabling amendment No. 95, which will enable the registration of many commons—including some in my own constituency—that were established by virtue of their own legislation. Some were not registered post-1965 because it was believed—wrongly—that to do so was unnecessary as they had their own legislation. The amendment rectifies that situation and I am extremely grateful to the Minister for tabling it.

I point out briefly to the Minister, and more particularly to his officials, that the amendments will be welcomed by Mrs. June Perry, who, on Sunday in Nottingham, will lead an annual walk around 130 acres of land, consisting of three miles-worth of public walks and five public paths that are allotted recreation land.

The serious point is that Mrs. Perry could not understand why the land was not going to be registered under the Bill. She entered into correspondence, and the response from the Department’s officials has been extremely helpful. I am delighted, and it is clear that the new regulations, when they are ready, will enable Nottingham city council to register the land as common land.

Once again, thanks—and hurrah!

I rise to support the amendments, but I want to press the Minister about the need in due course to produce regulations dealing with submitting notification of transfers and keeping the registers up to date.

At present, the registers record the existence of common rights, but not who owns them. If the rights were not registered in 1965, they have ceased to exist. The problem is that there is no register of who owns common rights. The registers reflected the position in 1965 but they have not been updated since, and numerous transfers and sales of rights have taken place.

The Bill does not really improve the situation. After reflecting and consulting widely on the matter, I entirely accept that we cannot reopen the registers. Like his predecessor in Committee, the Minister is right about that. Although there are many injustices because the registers were not reopened, I am now convinced that as many new injustices would arise if we reopened them and tried to correct the mistakes. Too much time has passed, and it is no longer possible to do anything about it.

However, in respect of notification, the Government assert that, if information on ownership is required, it is a simple matter to search the dominant tenement, as detailed in the registers of common rights. That search can be carried out at the Land Registry, but I stress to the Minister—I think that his officials know this already—that that is a very cumbersome process for several reasons. First, the field numbers detailed in the commons registers are no longer used, so it is difficult to identify the dominant tenement without considerable research. Secondly, numerous searches of the Land Registry would have to be made, one for each entry on the commons registers with rights attached to land. Thirdly, searches of the Land Registry would have to be repeated every time that a list of owners was required, as there is no process for keeping the “live” register updated. Finally, the costs of collating information would be burdensome on the party that needed it. Sometimes, that would be the Minister’s Department, but on other occasions it would be English Nature when it was undertaking conservation work, or commoners wishing to enter agri-environment schemes or form commons associations.

The Government argue that there can be only one definitive record of ownership. If there were more than one record of that, they ask, which would take priority if there were inconsistencies between the Land Registry and the commons register entries? Their reasoning is undoubtedly correct, but that should not prevent them from making it a requirement that transfers of rights must be notified to the relevant local authority, perhaps accompanied by a certificate from the Land Registry. The commons registers would not be proof of ownership—only the Land Registry documents could provide that—but they would at least be worthwhile, because they would contain useful documents about where ownership truly lay.

The problem is that, without up-to-date records of the ownership of rights, the proper management of commons is very difficult. Owners cannot be consulted on entry to agri-environment schemes, breaches of rules cannot be identified easily, and consultation on works such as construction or fencing cannot be undertaken properly. Moreover, the lack of up-to-date records makes consultation on the formation of statutory commons councils or associations very difficult.

In conclusion, I want to make the following suggestion—that the regulations that I hope that the Minister will make will encourage the notification of transfers. The Land Registry will continue to be the bible of who owns what, but I hope that the Minister will assure the House that he will bring in regulations providing for some sort of notification system when rights are transferred. That notification could then be placed in the commons registers, so that we would have a more up-to-date record of who owns the land. That would make consultation, and all the other things that I have mentioned, much easier.

I hope that the Minister will be minded to do what I suggest. I am not looking for firm guarantees today, but I also hope that he does not give me a firm put-down. I accept that this matter is not the top priority, and that he may have other regulations to make first, but I hope that he will say that he at least sees the merit of my proposal and considers that it could be worthwhile. I should like a guarantee that he will consult about it in the next year to see whether it has legs. If he finds that it does have legs, I shall give him my full backing—even though he can run a lot faster than I can these days.

I am sure we all share in the joy of Mrs. Perry and Mr. Pumfrey. This will be a great weekend for them.

The right hon. Member for Penrith and The Border (David Maclean) has worked hard on this issue, and I fully support what he said. There would be a problem if we reopened, wholesale, previous bad registrations but I should like to detail one burning issue, a matter I raise not just now, having done so on Second Reading and, with others, in Committee.

Like the hon. Member for South-East Cambridgeshire (Mr. Paice), I support the Bill. There is much to commend it. But I think it misses one or two points.

One bad example of a situation that the Bill cannot rectify—the Minister will correct me if I am wrong on this—is the case of common land CL 79, relating to Melinbarhedyn, near Machynlleth in mid-Wales, an example given to me by the National Farmers Union of Wales. Because of the Countryside and Rights of Way Act 2000, the Countryside Council for Wales was responsible for mapping common land and open-access land. The CCW took the information held by Powys county council on the common land register. The mapping exercise, when completed, allowed the divisional office in Llandrindod Wells to overlay the common land maps on the integrated administration and control scheme—IACS—information that it held for subsidy purposes for farmland.

As a result, farmland that had been bought and sold as freehold land for hundreds of years is now showing up as registered common land. That land is enclosed and has been improved by the owners. Over the years, many farmers have received agricultural grants to improve it, grants that were not available for use on common land. The farmers concerned hold title deeds, of course, and official searches were carried out showing when ownership had changed. None referred to common land. They did refer to “open sheepwalk” and “open sheepwalk, now fenced”.

In the 1960s, when the commons register was reviewed, it appears that the Ramblers Association registered the area as common land, and as no one objected the registration stood and remains on the register today. I understand that the Ramblers Association registered a lot of land in this way, and if the claim was challenged, the association withdrew the registration without opposition. I know that to be true because I was in practice when the Commons Registration Act 1965 was having its impact in mid, north and south Wales and in Shropshire. The question is why the landowners did not object to registration. The common-sense answer is that they had no reason to do so, because their title deeds gave them absolute, unfettered ownership without encumbrance.

In 1987, some landowners, by now aware of the registration, appealed to the commons commissioners to establish their ownership, and that was granted on 6 February 1987. It appears that they did not then apply—if they could have done so—to have the land removed from the commons land register. The farmers concerned have seen their financial assets devalued, and under the Countryside and Rights of Way Act 2000 the public now has full access to the land. In future, no doubt, boundary walls—dry-stone walls—will have to come down to allow as much access as is necessary.

The important point is that as agricultural subsidies move to hectarage payments, as we know they are, the loss of that farmland is affecting payments. The farmers have no rights registered in the land, so no headage is attributed and no payments are offset by the divisional office on the land. Yet the farmers ask why they should register rights for commons in the circumstances that I have described. The divisional office required sight of the deeds; it has been done and there has been no change.

I understand, incidentally, that Powys county council has used the term “sheepwalk” as an indicator of “waste of the manor”, which it uses to determine common land. The farms concerned were all part of the same estate and had grazing on the same part of the sheepwalk, which was an open upland area. As I have already said, it was enclosed prior to the current ownership. One farm has more than 46 hectares. It follows from what I have said that the current arrangement is a great problem, conundrum and a matter of great concern to the relevant landowners. It appears that the land was incorrectly registered and unless there is an opportunity to deregister, the land itself will be undervalued and, more importantly, there will be a massive loss of subsidy in the future.

Four families are involved in this particular case: Mrs. Jones of Barhedyn, Mr. Morris of Ty Coch, Melinbarhedyn, Mr. Lewis of Cefnbarhedyn and Ms Jones of Rhiwgreafol. Hansard will no doubt enjoy that. I should not really say it, but I see that there is a Welsh speaker taking notation for Hansard, which, in the circumstances, is a jolly good thing! It is a serious matter, however. I have to say that both the Minister and his predecessor have been very helpful with the Bill. It was useful to serve in Committee because reasonable arguments were put on both sides, and I believe that people listened to them.

My one remaining grouse—if I may use the word in connection with moorland and uplands—is that the circumstances of this case are fairly prevalent. I am not saying that it goes on everywhere, but there are many other examples. The farmers are not in a position to go to the High Court; in these circumstances, it would not be the right avenue to follow. I am not sure, though, what possible avenue they have. In other circumstances, there is the option of going to the High Court for some form of rectification, but it is not appropriate in this case. I urge the Minister to reflect on whether anything in the Bill will assist these people, who are desperately worried—and understandably so. I am sure that in due course the Minister will provide his reasoned response to my plea.

First, I wholeheartedly agree with my hon. Friend the Member for Sherwood (Paddy Tipping) when he thanked my officials for the way in which they have dealt with all matters relating to the Bill. His words were greatly appreciated by me and, I am sure, by them.

At risk of placing my own position in peril, may I say that I often see merit in the words of the former Opposition Chief Whip, the right hon. Member for Penrith and The Border (David Maclean) and that I am not averse to seeing merit in what he said on this occasion? I do not know whether the right hon. Gentleman has seen the briefing on the Commons Bill, which identifies the ownership of rights of common. I hope that it explains, to some extent at least, why we cannot adopt wholesale and simply the approach that he has commended this afternoon.

The issue of the register failing to show who can exercise rights of common is an important one. Traditionally, rights of common are attached to land, typically a farm, and those rights may be exercised by the landowner. That means that most commoners have strong connections with the common, because they occupy farms that neighbour it. The Bill preserves and reinforces that connection by banning severance and by providing that the registers are conclusive evidence of the attachment of the rights to land.

The Bill does not enable owners of such land to register their personal entitlement to exercise rights, because that entitlement is the inevitable consequence of their owning the land. Ownership of land can be demonstrated by registration of ownership in the Land Registry, as the right hon. Gentleman acknowledged. However, we acknowledge that it would be helpful if the register showed who is entitled to exercise rights.

We will enable commoners to enter a supplementary note on the register, declaring their entitlement to exercise rights. The declaration would not be conclusive but may be informative. We are also exploring the possibility of providing in regulations that a commoner need not be consulted on any matter affecting the common unless he has declared his entitlement to those rights, thus giving him an incentive to do so.

I am grateful to the Under-Secretary for giving way—he is customarily courteous. I am largely content with what he has said. I agree that a declaration can be only informative, not conclusive. However, could he make declaring entitlement the default position so that adding supplementary information would be the norm? Perhaps he cannot make it compulsory or insist on it in every case, but if the matter is left so that a commoner may attach the information if he feels like it, it will not happen. If he can somehow make it the default position, we would all be content.

I recognise the strength of the right hon. Gentleman’s argument. I was trying to explain that we are considering whether to provide in regulations that the commoner need not be consulted on a matter affecting the common if personal rights have not been registered. That is a powerful incentive. It is not simply asking people to register, but providing a carrot. I am not committing the Government to that now but we are considering it. We shall give it further consideration when we frame the regulations. I hope that that goes a long way to answering the right hon. Gentleman’s points.

The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) spoke with great passion and knowledge about the case of many of his constituents and the errors resulting from the Commons Registration Act 1965. As he acknowledged, it is impossible to say how many errors the registers contain, not least because there is currently no legal mechanism to deal with them and therefore no obligation on the registration authority to record them systematically.

However, the mapping of open country and registered common land for the purposes of the statutory right of access under the Countryside and Rights of Way Act 2000, which the hon. Gentleman mentioned, has brought into the open hundreds of alleged errors, some of which have been taken to appeal under the Act, although it is not possible for appeals to deal with wrongful registration. That is why schedule 2 provides for deregistration of some wrongly registered commonly land. I cannot say whether those provisions will apply in the specific cases that he has described—that would be for a tribunal to judge in due course. It would be imprudent and wrong of me to try to make a judgment. However, if he wishes to write to me with details of those cases, I shall try to be as helpful as possible.

I am extremely grateful to the Minister for that response and I will take up his invitation. The exchange has been helpful and we might be able to consider together whether the Bill contains a solution.

With that, I simply ask hon. Members to accept amendment No. 14 and the others in my name.

Amendment agreed to.

Amendments made: No. 15, in page 13, line 41, at end insert—

‘( ) An application made for the purposes of any of—

(a) sections 6, 7, 10, 11, 12, 13 and 15, and

(b) paragraph 1 or 3 of Schedule 1,

shall, subject to any provision made by or under this Part, be granted.'

No. 16, in page 14, line 6, after ‘section 19' insert ‘, Schedule 2'.—[Barry Gardiner.]

Clause 26


I beg to move amendment No. 17, in page 15, line 15, leave out ‘association' and insert ‘council'.

With this it will be convenient to discuss Government amendments Nos. 18 to 22, 24 to 75, 81, 82, 84 to 91 and 109.

I trust that I shall be able to dispatch this group of amendments in even less time than it took you to read them, Madam Deputy Speaker.

The amendments change the name of commons associations to commons councils. There is cross-party support for such a change, and support from stakeholders. The proposed changes are numerous. We have weighed up their impact at such a late stage of the Bill’s proceedings, but the changes are purely presentational and do not in any way alter the functions of the bodies or the way in which they will operate, so I commend them to the House.

I welcome this group of amendments unreservedly. As the Minister knows, I proposed them in Committee so I am delighted that the Government have come round to that way of thinking, especially because, as the hon. Gentleman rightly says, it is also the view of the stakeholders. The purpose was to get rid of the confusion that would have occurred between statutory and voluntary associations, and although a variety of terminology was bandied about, the obvious word was councils. A commoners council already works successfully on Dartmoor, so I welcome the proposal.

One of the Government’s reservations about my proposal was that it would require the large number of amendments to which you referred, Madam Deputy Speaker, and that the Opposition might at a later date use that to accuse the Government of not getting their legislation in order. I hope that my hon. Friend the Member for Romford (Andrew Rosindell), the Opposition Whip, will record that on this occasion I promise not to chide the Government for tabling such a large number of amendments, because they concur entirely with those I tabled in Committee and I welcome them.

I, too, welcome the amendments. As the hon. Member for South-East Cambridgeshire (Mr. Paice) said, they get rid of the confusion that could arise between the statutory bodies to be set up under the Bill and the voluntary associations that the Minister’s predecessor anticipated would continue to have purposes and functions in the future. The amendments will be an excellent resolution of that problem; they will give people greater clarity about what is a statutory and what is a voluntary body, which can be only to the good and will simplify the management of commons.

I join the welcome for the change, but will the Minister give a little more explanation of amendment No. 23? It is slightly different, in the sense that it inserts the words

“and in particular persons exercising rights of common”.

I should be interested to know—

Order. Perhaps I can help the hon. Gentleman. There are many amendments in the group, but Government amendment No. 23 is not one of them.

I beg your pardon, Madam Deputy Speaker. I shall come back to it later.

Amendment agreed to.

Amendments made: No. 18, in page 15, line 16, leave out ‘association' and insert ‘council'.

No. 19, in page 15, line 17, leave out ‘association' and insert ‘council'.

No. 20, in page 15, line 18, leave out ‘association' and insert ‘council'.

No. 21, in page 15, line 19, leave out ‘association' and insert ‘council'.

—[Jonathan Shaw.]

Clause 27

Procedure for Establishment

Amendment made: No. 22, in page 15, line 22, leave out ‘association' and insert ‘council'.—[Jonathan Shaw.]

I beg to move amendment No. 23, in page 15, line 37, after ‘common' insert

‘(and in particular persons exercising rights of common)'.

The amendment addresses Opposition concerns that, when the national authority is considering whether there is substantial support to establish a commons council, representations from commoners actively exercising their rights should carry greater weight than those who are inactive, or who are not exercising their rights.

On some commons the number of inactive commoners exceeds the number of active commoners. There is concern that opposition by a large number of inactive commoners might be enough to prevent a council being established. Although any views expressed by inactive commoners will undoubtedly need to be considered, the amendment ensures that the national authority must pay particular regard to the views of those commoners actively exercising their rights as they are the people who are actually making use of the common. Commons councils will have functions relating only to the management of agricultural activities, vegetation and common rights. The views of those actively exercising rights of common are extremely important as they are the persons able to influence the management of the common. Our amendment will require the Secretary of State, or the National Assembly in Wales, to attach more weight to the views of active commoners when considering representations from those with common rights.

As I suggested in an earlier discussion, I welcome the amendment, together with most of these groups of amendments, because they are all positive Government responses to representations made by myself and other hon. Members in Committee. Amendment No. 23 is extremely sensible. It shifts the balance, as the Minister said.

It might help, however, if the Minister would say precisely how he envisages the provision operating. I do not think that he intended those using the rights to have a right of veto, but has he had any discussions about how he would apportion more weight to them, particularly—I shall not reopen an earlier debate—given that non-users but holders of rights may vastly outnumber those who exercise their rights? There may only be two or three people who exercise their rights; there could be dozens or—as in the example of development that I used earlier—tens if not hundreds of people who hold rights but do not exercise them. It would be useful if the Minister explained in more detail how he envisages that balance working out, bearing in mind what could be a considerable numerical imbalance.

Now that we are on the right amendment I shall ask the Minister a few questions, although my right hon. Friend the Member for Penrith and The Border (David Maclean) has shot most of my foxes. Like my right hon. Friend, I would like an idea of how the Minister or the Government will interpret this provision. I raise this particularly because in my constituency I have a large number of grazed commons, and at the moment they are extremely well organised. One of the biggest, Allandale common, has a stintholders—people with common rights—committee, and they run the common extremely efficiently, despite some difficulties that Natural England or English Nature have been presenting them with recently over the issue of fencing.

The stintholders are anxious to know whether their stintholders committee would simply be seen to continue to exist in its current form as a committee, or whether it would be preferable for it to translate itself into a council; and whether, if it translated itself into a council, people other than the stintholders—those who have direct common rights—would have a right to be involved in the management of that council--that is, other local organisations, or ramblers, who might consider that they have a right to access that common. A fuller explanation of how the Government intend to work this would be appreciated.

Amendment No. 23 is an important amendment and I congratulate the Minister on listening to the representations made in Committee. It is important that those who earn a living from the land should have more say on how the commons are managed than those who are just living in the area. There is an increasing tendency these days, as farming declines and particularly some of the small farms at the foot of the hills decline, for them to be bought out by offcomers like myself, as they would say in Cumbria—a large number of people who do not earn a living from the land but are buying up farmhouses or farms; and suddenly, one discovers that one has some extraordinary rights of common.

I think—I can only say “think” because I am not certain; it is my negligence—that for the past 10 years I owned some rights to cut peat on Mungrisdale common. I did not exercise them and I have sold that house now, so I shall not be exercising them, but it is not too far-fetched to imagine a situation where so many of us who are not practising farmers buy houses or land—we buy our quaint little bit of old England—and then we want to freeze things in aspic. We do not want to let modern farming practices continue and we do not want to see sheep around, breaking into the garden. We do not want grazing. We do not want this or that. It is important that the minority, in some cases, who may be actually carrying on the practice of farming the commons, and managing them and keeping them in their current condition, have a much greater say in how they are run than those people who just buy a bit of land and suddenly find that they have a grazing right, a peat-cutting right or a heather-burning right and do not intend to do anything with it.

Again, I know that the Minister cannot be specific about what weight he will attach to five representations from one side and 10 from the other. He cannot be formulaic about it, but we need assurances on the mechanics of how he will listen more to the views of practising commoners, rather than those who have merely acquired a piece of land. That is probably going to be an increasing problem that we face in rural England in the management of commons over the next few years.

I also agree that the amendment is important. It redresses the balance that appeared to be out of kilter in the initial wording—according to one view, at least. Many people will welcome the amendment. As the right hon. Gentleman said, it is vital that the voice of people who make a living from the common be heard clearly. Of course, it is a balancing exercise, because many other interests are involved. The amendment redresses what was perceived to be an imbalance at the beginning. I would be interested to hear the Minister’s response to the various points that have been raised, but I welcome the Government’s amendment.

First, I would like to address the remarks from the hon. Member for Hexham (Mr. Atkinson), who raised the issue of voluntary associations. The Bill has no effect on existing voluntary associations. Where such a body is working well, there is no need for any change. However, where a commons council is established on a single common or a small number of commons, we would expect that the council might replace any existing voluntary association. That would be a decision for those running the voluntary association and not one that would be taken by the national authority.

Where a larger commons council is established—for example, covering several commons in an area—it is entirely possible that voluntary associations might continue to exist and to have a role in the day-to-day work on an individual common. Rules about management would be made by the statutory body and the voluntary association would have to abide by those rules in carrying out its operations. Dartmoor is a good example. Voluntary commoners associations exist on many of the commons, but management of the commons is governed by rules made by the Dartmoor commoners council. I envisage that as the sort of relationship that could and should develop.

The wider questions were about trying to give a feel to how one would arrive at the judgments and the relative weight that would be given to the active and inactive commoners. Primarily, I am here as Minister for biodiversity. The Bill is about land management and the improvement of our common lands. When considering whether to establish a commons council, the national authority will consider the local circumstances. Where there are numerous inactive commoners, with no interest in the common, the national authority will pay greater regard to any active commoners. Similarly, the inactive commoners would be given few—or fewer—voting rights, compared with the active commoners.

We need to retain the flexibility to respond to local circumstances. On an agriculturally active common, it would not make sense for inactive commoners to be given an equal say in whether a council should be established, or equal voting rights if one were. However, where there is no agricultural activity on a common, it may be right for inactive commoners to have a stronger representation. The amendment will retain that flexibility, which I believe is inevitable and right, but will ensure that, where they exist, active commoners will have a greater role and that the national authority will be able to look to the essential purpose—

Would I be right in presuming that the actual framework will be subject to regulation? The Minister refers to a differential in voting rights. Will there be some guidance on that in regulations? I will not press the point at this immediate moment, so if he cannot give me an answer now, no doubt he can do so in writing at a later date. I do not want to put him on the spot, but how will the process that he is describing be rolled out, to use a modern term?

I am grateful to the hon. Gentleman for the wonderful way in which he extended his remarks until my inspiration came. There will be guidance, but there will be no regulations except the establishment orders, which will be brought forward on a case-by-case basis. I hope that that is helpful.

Amendment agreed to.

Clause 28


Amendments made: No. 24, in page 16, line 3, leave out ‘association' and insert ‘council'.

No. 25, in page 16, line 5, leave out ‘association' and insert ‘council'.

No. 26, in page 16, line 7, leave out ‘association' and insert ‘council'.—[Jonathan Shaw.]

Clause 29


Amendments made: No. 27, in page 16, line 11, leave out ‘associations' and insert ‘councils'.

No. 28, in page 16, line 13, leave out ‘association' and insert ‘council'.

No. 29, in page 16, line 16, leave out ‘association' and insert ‘council'.

No. 30, in page 16, line 21, leave out ‘association' and insert ‘council'.—[Jonathan Shaw.]

Clause 30

Constitution: supplementary

Amendments made: No. 31, in page 16, line 33, leave out ‘association' and insert ‘council'.

No. 32, in page 16, line 37, leave out ‘association' and insert ‘council'.

No. 33, in page 16, line 38, leave out ‘association' and insert ‘council'.

No. 34, in page 16, line 39, leave out ‘association' and insert ‘council'.

No. 35, in page 16, line 41, leave out ‘association' and insert ‘council'.

No. 36, in page 17, line 21, leave out ‘association' and insert ‘council'.—[Jonathan Shaw.]

Clause 31


Amendments made: No. 37, in page 17, line 24, leave out ‘association' and insert ‘council'.

No. 38, in page 17, line 27, leave out ‘association' and insert ‘council'.

No. 39, in page 17, line 30, leave out ‘an association' and insert ‘a commons council'.

No. 40, in page 17, line 32, leave out ‘association' and insert ‘council'.

No. 41, in page 17, line 33, leave out ‘association' and insert ‘council'.

No. 42, in page 17, line 37, leave out ‘association' and insert ‘council'.

No. 43, in page 18, line 3, leave out ‘association' and insert ‘council'.

No. 44, in page 18, line 4, leave out ‘association' and insert ‘council'.

No. 45, in page 18, line 7, leave out ‘association' and insert ‘council'.

No. 46, in page 18, line 11, leave out ‘association' and insert ‘council'.—[Jonathan Shaw.]

I beg to move amendment No. 122, in page 18, line 20, at end insert—

‘( ) Where a commons council consists of two or more voluntary commons associations the powers given to councils by this legislation and by regulation can be conferred to those associations.'.

With this it will be convenient to discuss amendment No. 117, in page 26, line 18 [Clause 45], at end insert—

‘(4) Where subsection (1) applies and a commons association established under Part 2 does not exist in relation to the land, a local authority may assume and exercise any of the rights of management of the land which would otherwise be held by the owner, until such time as a commons association exists or the owner is identified.'.

We tabled amendments Nos. 122 and 117 so that we could address the fact that there will be not only voluntary associations in the future, but statutory councils, as the Minister has said. In Committee, the then Minister, the hon. Member for South Dorset (Jim Knight), was reasonable and said that voluntary associations will be able to carry out their functions very much as they do today, in the sense that they will be able to enter into agreements on management that would attract funds and subsidies to allow them to fulfil their potential for biodiversity.

Some commons will want to remain as voluntary associations, while others will want to set up statutory councils. Sometimes, voluntary associations might even want to come together to form a council that would thus encompass more than just one association. In such a case, the powers in the Bill will give such councils a worthwhile way of ensuring that the management of agriculture is of a high standard, that there is a high standard of conservation of nature and archaeological features, and that promoting access is of a high standard. However, it might be more convenient if the associations that formed the council could interpret those principles locally, because one common might require different management from another to achieve the same goals. Amendment No. 122 thus explores the possibility of ensuring that smaller and more local associations would able to carry out such management within the statutory council that encompassed them.

Amendment No. 117 addresses the situation that arises when there is no known owner of a registered common. The Bill will give local authorities the power to act when someone commits an offence on such a common. The amendment would give local authorities the power to act more positively to promote better management, rather than merely preventing or dealing with offences that may occur. The amendments are probing, but I will be interested to hear the Minister’s response to them because they reflect matters that cause people concern.

I am rather nervous about amendment No. 117. It may be giving powers to local authorities to exercise functions for which they are not fully up to speed. My local authorities are skilled in many things and they perform the functions currently conferred upon them reasonably well. The idea that they would be able to manage commons, even ones that are not claimed and are not currently identified, and perform some of the functions of the commons associations, with the proper skills and knowledge that some of those associations must have, is rather stretching the point. If the councils in my constituency had to undertake the function and had to get up to speed, I shudder to think of the cost involved in employing the experts that they would no doubt bring in, along with hundreds of consultants, to run a common.

I reflect upon the point that the right hon. Gentleman is making. The amendment refers to where there is no owner or commons council or association that is in existence. The threat that a local authority might come in and start to manage a common might trigger the formation of an association or council. I do not think that the graziers would want that intervention to take place. The point of the amendment is to provide a safeguard rather than a continuing process.

I accept the hon. Gentleman’s point. This could be an ultimate longstop. The threat of a local council running a common might produce an order double quick. I do not think that we can build that into legislation. I do not have a strong view on this point; I wish to hear what the Minister says. The amendment may be a step too far at this stage. There are many excellent provisions in the Bill. I am worried about the extent of the briefing that we have received from English Nature. It seems to think that it will be fully in charge of things. Its covering letter gives the impression that it will be running everything on the commons. I accept that it has wonderful skills.

We have commons worth protecting, but not because English Nature invented them 200 years ago. The great, great grandfathers of today’s commoners created the wonderful commons that are worth protecting. I am loth to give additional powers to local authorities that are not entirely knowledgeable in this area. There, I rest my case.

I am reluctant to break the consensus on the commons. I confess that I have some sympathy with the mover of amendment No. 117, the hon. Member for Brecon and Radnorshire (Mr. Williams). As he rightly said, the amendment is a back-stop. There are pieces of land throughout the country—commons—where there is no known ownership. Commons are an important part of our environment and our landscape. Many of them are sites of special scientific interest. It seems that if no known owner exists, there is a case for management to come in. That management could be provided by the local authority.

In the other place, Baroness Farrington of Ribbleton claimed:

“It is not that we need additional legislation in order for it to happen.”—[Official Report, House of Lords, 30 November 2005; Vol. 676, c. 282.]

The Baroness claims that there are existing powers to handle the situation. It would be helpful if the Minister would spell out those powers.

Amendment No. 122 would permit statutory powers given to commons councils to be delegated to voluntary associations of commoners. It would strengthen the role of voluntary associations of commoners where they might continue to exist on commons that come under the jurisdiction of a large commons council.

Where a commons council is established over one or more commons, voluntary commoners’ associations may continue to exist and play an important role in the day-to-day management of individual commons, as I tried to outline to the hon. Member for Hexham (Mr. Atkinson) a few moments ago. For example, they may co-ordinate the activities of graziers in managing their livestock to comply with rules made by the commons council. Voluntary associations cannot, and should not, be given free-standing statutory functions. A commons council will be given statutory functions only after following an establishment procedure and consulting interests in the common to ensure that there is substantial support for its proposals. In our view, it would be quite inappropriate for a council to be able to divest itself of statutory functions to voluntary associations that have no legal foundation and may not be representative of all the interests in a common.

A large commons council covering multiple commons may, however, set up committees or sub-committees to address specific issues, or even to manage activities on a particular common on behalf of the council, but responsibility for the statutory functions of the council must remain with that body. I should clarify the fact that voluntary associations will not have a formal role within a commons council. Membership of the council will typically be established by democratic election, and it would not be right automatically to appoint a voluntary association to serve on the council, because it will not necessarily represent all commoners. Of course, there is no reason why members of the voluntary association could not put themselves forward for election to the council. While we expect that there will be situations in which commons councils work alongside voluntary associations, they will not automatically consist of voluntary associations, as the amendment proposes. I therefore urge the hon. Member for Brecon and Radnorshire (Mr. Williams) to withdraw his amendment.

Amendment No. 117 would enable a local authority actively to manage an unclaimed common. Under section 9 of the Commons Registration Act 1965, which is re-enacted in clause 45, local authorities already have powers to protect unclaimed common land. In that context, protection means taking action against unlawful interference—for example, seeking a court order against caravans drawn onto the common, or dealing with an encroachment. The amendment, however would enable an authority to go further, so that it could manage the land as if it were itself the owner. On the face of it, that seems a sensible step.

We support the aim of enabling local authorities to manage unclaimed common land, which is why clause 50 amends part I of the Commons Act 1899 to update existing powers to make a scheme of management for common land and allow management to be vested in the local authority. That is the best approach to managing unclaimed common land. A scheme of management ensures that the authority has clear powers to administer the common in the interests of the local community, but it ensures, too, that the authority has clear responsibilities.

Making a scheme is straightforward and relatively cheap—a scheme recently made by Forest of Dean district council cost less than £700. Alternatively, it would be open to the local community to seek to establish a commons council for the land, and the local authority could help to facilitate that. The management of the common would be in the hands of the commons council, rather than the authority. A commons council will have all the powers needed to manage common land, even when the owner cannot be identified, and thus ensure that the objective of better management, which I share with the hon. Member for Brecon and Radnorshire, can be achieved.

Unfortunately, the effect of the hon. Gentleman’s amendment is much less clear. It would certainly allow an authority to plant trees or cut the grass, but by doing so, would it acquire any of the duties of an owner or occupier, so that, for example, it would be obliged to make safe any dangerous trees, or dispose of fly-tipped waste? What would happen if the commoners objected to what the authority had done, or if the owner turned up and wanted the authority to remove the trees that it had planted the previous year? Those difficulties are resolved by schemes of management, but not by the hon. Gentleman’s proposals. I can appreciate his indifference to such schemes, as he may fear that local authorities will not take the initiative to make new schemes. However, we are already committed to advising local authorities on their new powers under the Bill in a circular, which we intend to publish as part of the implementation programme following Royal Assent.

We want to reinvigorate the powers in the 1899 Act by changing the Bill and by commending those changes to local authorities. However, we cannot advise local authorities, and we do not think that it would be right to, to dip in and out of the process of commons management, as the amendment suggests, because it must be a case of all or nothing. It is right that authorities can step in, when required, to protect common land, but that does not imply that they have wider responsibilities for that land. If a local authority wants to go further than that, it should make a scheme of management so that everyone is clear about its role and responsibilities.

Those are important aspects of the scheme, and it is right that those matters are covered comprehensively in the scheme rather than being left uncertain, as this amendment would have it. Once again, I am unable to support the amendment, which I ask the hon. Gentleman to withdraw.

I have listened to the Minister’s comments, and on the basis of his opinions, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32

Ancillary powers

Amendments made: No. 47, in page 18, line 22, leave out ‘association' and insert ‘council'.

No. 48, in page 18, line 30, leave out ‘association' and insert ‘council'.

No. 49, in page 18, line 33, leave out ‘association' and insert ‘council'.

No. 50, in page 18, line 34, leave out ‘association' and insert ‘council'.

No. 51, in page 18, line 35, leave out ‘association' and insert ‘council'.—[Mr. Watts.]

Clause 33


Amendments made: No. 52, in page 18, line 38, leave out ‘association' and insert ‘council'.

No. 53, in page 18, line 41, leave out ‘association' and insert ‘council'.

No. 54, in page 19, line 1, leave out ‘association' and insert ‘council'.

No. 55, in page 19, line 5, leave out ‘association' and insert ‘council'.

No. 56, in page 19, line 6, leave out ‘association' and insert ‘council'.

No. 57, in page 19, line 9, leave out ‘association' and insert ‘council'.

No. 58, in page 19, line 16, leave out ‘association' and insert ‘council'.

No. 59, in page 19, line 19, leave out ‘association' and insert ‘council'.—[Mr. Watts.]

Clause 34

Enforcement of rules

Amendments made: No. 60, in page 19, line 34, leave out ‘association' and insert ‘council'.

No. 61, in page 19, line 43, leave out ‘association' and insert ‘council'.

No. 62, in page 20, line 1, leave out ‘association' and insert ‘council'.

No. 63, in page 20, line 4 , leave out ‘association' and insert ‘council'.—[Mr. Watts.]

Clause 35

Rules: supplementary

Amendments made: No. 64, in page 20, line 12, leave out ‘association' and insert ‘council'.

No. 65, in page 20, line 13, leave out ‘association' and insert ‘council'.

No. 66, in page 20, line 19, leave out ‘association' and insert ‘council'.

No. 67, in page 20, line 24, leave out ‘association' and insert ‘council'.—[Mr. Watts.]

Clause 36

Consequential provision

Amendment made: No. 68, in page 20, line 30 , leave out ‘association' and insert ‘council'.— [Mr. Watts.]

Clause 37

Variation and revocation of establishment orders

Amendments made: No. 69, in page 21, line 10 , leave out ‘association' and insert ‘council'.

No. 70, in page 21, line 12, leave out ‘association' and insert ‘council'.

No. 71, in page 21, line 13, leave out ‘association' and insert ‘council'.

No. 72, in page 21, line 15, leave out ‘association' and insert ‘council'.

No. 73, in page 21, line 20, leave out ‘association' and insert ‘council'.

No. 74, in page 21, line 22, leave out ‘association' and insert ‘council'.

No. 75, in page 21, line 25, leave out ‘association' and insert ‘council'.—[Mr. Watts.]

Clause 38

Prohibition on works without consent

I beg to move amendment No. 114, in page 21, line 36, at end insert—

‘(2A) Subsection (2)(a) does not include works for the purposes of—

(a) the safety of users of the Common; or

(b) animal welfare; or

(c) conservation;

Provided that they are either—

(i) necessary for immediate reasons whilst consent is obtained under subsection (1); or

(ii) constructed for a limited period as may be specified in Regulations made by the appropriate national authority.'.

With this it will be convenient to discuss the following:

Government amendments Nos. 76 to 80

Amendments No. 121, in page 43, line 35 [Schedule 4], leave out

‘on or after 28 June 2005 but'.

I welcome the Government amendments that deal with the issue of the National Trust. Again, we referred to that matter in Committee, where I tabled those amendments. In Committee, the Minister said that the amendments were not necessary, so I am glad that this Minister has acceded to them. Ministers often say, “It is not necessary to include such and such provision, because it is implicit somewhere else”, which usually leads Opposition Members to argue, “If it is not going to do any harm, why don’t you put it in the Bill for clarity?” Ministers usually resist such moves, but this Minister has not done so on this occasion, which is welcome.

Amendment No. 114 concerns works on commons, which we debated at some length in Committee and about which the Minister and I have had further discussions. I suspect that the Minister will argue that clause 38 is similar to existing legislation, so there is not a problem. However, I suggest that we should take this opportunity to make sure that there is not a problem in the future. There are obviously far more users of commons than there used to be, including not only graziers, but pedestrians and dog walkers.

The amendment is straightforward. It is designed to eliminate the problem of people, organisations and commons councils having to apply to the national authority for permission to do temporary or urgent works. The three purposes for which it would be possible to carry out such works are human safety, animal welfare and conservation. However, those purposes would not be sufficient in themselves, because the second part of the amendment adds two further provisos—first, that the works must be urgent, and, secondly, that they must be temporary.

We debated temporary works in Committee. The hon. Member for Sherwood (Paddy Tipping) will recall that we discussed electric fencing to keep livestock off roads during the grazing season, and there was some debate about how long is “temporary”. I have not tried to specify the period of time and suggest that the matter could be dealt with by regulation, which would allow the Minister to consult before drawing a conclusion. The circumstances in which I envisage the issue of urgency arising involve, for example, floodwater rendering part of a common dangerous for children. There are town commons in my constituency where people roam, and much of my constituency is fenland, which, because it is close to sea level, is prone to flooding. It might be sensible to erect emergency fencing, even if it is that dreadful orange plastic stuff that is used around roadworks, to keep children out of deep water.

Other commons may have old pit shafts where ground could suddenly collapse as a result of torrential rain, again creating a need for emergency safety provisions for children and livestock. It is by no means unknown for sheep to fall down into such places. In terms of conservation, there may be a wild plant that is flowering and should be protected until it has set its seed, or a wild bird such as a hen harrier or other bird of prey that is nesting on the ground and needs to be protected for a short period.

I find it incredible that in all the examples that I have cited it should be necessary to apply to the national authority—in England, the Secretary of State—for permission to act. I would be very surprised if someone was able to get that permission in a matter of hours, yet a situation involving floodwater or the collapse of old mine workings is certainly an emergency, and there should be an ability to erect something very quickly.

I cannot pretend that I am standing here in huge anticipation that the Minister will welcome and accept my amendment with open arms, but it concerns a genuine issue. I have bent over backwards in devising it to make it as minimal as possible in addressing the concerns that his predecessor expressed in Committee. It is limited to specific examples but would reduce the need for councils or landowners to seek consent from the national authority without good cause. It defies belief that a council should have to go through this procedure in an emergency, thereby creating a period of risk for perhaps several weeks while the relevant authorities carry out all the necessary deliberations and consultations before a decision is reached. I am not trying to circumvent the need to apply for consent, but merely to allow for a temporary arrangement in an emergency while it is being sought.

This requires a sense of proportion and common sense. The Government rightly and understandably want to protect the rights of commons users other than graziers, such as walkers and people using the open access provisions, but I am trying to protect them as well. They could be at risk from some of the situations that I described, and it should be possible to protect them as soon as that is necessary. The same applies to the conservation of flora or fauna.

There is no need for me to speak at any greater length. I think that the case is clear, and I hope that I have made it so. I tried to devise an amendment that the Minister would find acceptable and that is relatively minimal while addressing the fundamental problem. It has received support from outside organisations such as the National Farmers Union. I hope that the Minister will understand its importance and be prepared to accept it.

I am pleased to follow the hon. Member for South-East Cambridgeshire (Mr. Paice), who stressed the importance of managing the different interests, needs and conflicts in the countryside. I want to press that line of thinking with the Minister.

Government amendments Nos. 77 and 78 provide a discretionary power to ensure that clause 38 does not revive controls that ceased under section 194 of the Law of Property Act 1925. The Minister wrote helpfully to all members of the Committee on 23 June 2006. He said that he felt that the amendments were necessary because of one example—Warcop military training estate in Cumbria, in the constituency of the right hon. Member for Penrith and The Border (David Maclean). I know Warcop common, which is an attractive, exciting piece of countryside, and he will know that the MOD manages it well, but there is potential conflict between the MOD’s purposes and the desires of walkers and ramblers in the north Pennines. I ask the Minister to put on record what he put in his letter—that if this discretionary power is used, there will be full consultation by MOD estates. The conflict of interest can be resolved and it is important to do that.

Another conflict of interest is dealt with by my amendment No. 121. Members will be familiar with the issue, which has run throughout the course of the Bill. When the Bill was first published, 28 June 2005 was not mentioned—the date was inserted in the other place in Grand Committee. The purpose of this part of the Bill is to give people the right to argue that unlawful works should be removed. That is important in the context of the Countryside and Rights of Way Act 2000, which has been mentioned today.

One of the Government’s achievements has been the gift to working people of the right to roam freely over open country. All over the country, however, there is unlawful fencing. As I understand the present position, people can make an application for unlawful works and fencing erected after 28 June 2005 to be removed. I know from my direct experience, however, that there is fencing all over the country that precedes that date. For the life of me, although I know why the date of 28 June 2005 has been inserted, I do not understand the principle behind it.

It is important that the Government are clear about their intent. It has taken landmark legislation to allow people to walk freely in the countryside. That access is being restricted by unlawful works. It cannot be right that people such as me can apply for those unlawful works, which prevent access to parts of the country, to come down if they were erected after 28 June 2005, but not if they were erected prior to that. The Bill has been improved, and its balance is generally right. On that aspect, however, the Government have got it wrong—badly wrong.

I support my hon. Friend’s amendment No. 114.

In relation to Warcop, before I get too far out of order, Mr. Deputy Speaker, may I pay tribute to the wonderful job the Ministry of Defence does in managing that range for wildlife purposes? When I hear people whinge about the MOD owning land and so on, I know that the best places for wildlife protection in my constituency are on the live firing ranges at Warcop, with tanks blasting off 120 mm shells a few yards away from where wildlife is happily existing. I am happy to put that on record.

There is no great issue of principle between us on what we are seeking to achieve. I pay great tribute to the hon. Member for Sherwood (Paddy Tipping), and when we discussed the matter in Committee, I could not help but conclude that when he thinks of commons it is of the Wimbledon commons of this world and smaller village greens, where it would be absolutely atrocious for people to put up miles of barbed wire fencing. I, however, tend to think of 10,000 acres of moorland in Cumbria, where we sometimes need a wee bit of fencing.

I think of those wild open spaces in the north Pennines. That is why I praise the Government for what they have done to allow people like me, from ordinary backgrounds, to experience it after a century of campaigning. I want that to continue; I do not want unlawful fencing to stand in its way.

I entirely agree. We do not want unlawful fencing. We do not want those wild open spaces to be cordoned off so that people cannot use them, we do not want miles of barbed wire so that people get tangled up in it—but we do not want people to fall down holes.

The simple examples that I shall give the Minister are not original; I gave them in Committee. But if the Bill were already law, by this time of the year the Minister would probably have 1,000 applications on his desk from Cumbria alone. Why? If I read the law correctly, at this time of year the bulk of those applications would be for permission to put up a few gates for a few days—a few weeks at most—to separate the sheep from the lambs. Sheep may now be out on the fells with the lambs. They may be nearer to the in-bye land. Farmers will not drive them all into the sheds to separate them; what they will do, at times, is take out a few gates, wooden or steel, put up a temporary pen, and then do some separation work. They will do it when they are doing the lug-tagging—putting the ear tags on. They will find a corner where two stone walls come together, and put up a temporary pen there. That happens every day of every week of the year in Cumbria, and no doubt in other sheep areas.

Those pens do not stay up permanently. The common is not fenced off. The pen provides a little sheep fank in which a farmer can work with his sheep for a day, or a couple of days. Then he will take the pen down and move on. That is happening all over Cumbria.

We have thousands of miles of stone walls in Cumbria, all built in the 19th century. Some of them look splendid, but most are teetering and a great many have fallen down. Every day of the year a bit of stone wall falls down on some Cumbrian common. If the commoners—the farmers—do not have time to fix the wall immediately, they will stick 10 ft of sheep netting or electric fencing around it. Over a period of two or three weeks they will rebuild the wall, a bit at a time, each day when they are checking the sheep. Those farmers are law-abiding people, but there is no way they are going to write to a national authority saying “A bit of my wall has fallen down; may I please have permission to stick up 6 ft of electric fencing?” That is just not going to happen, and those people will be breaking the law.

A wet hole may suddenly appear on a common. Again, we are not talking about a village green; we are talking about tens of thousands of acres of moorland and rough fell—some of the wildest, roughest land in the country. There are little bogs and hollows. Sheep fall in, so a farmer will try to fence off a circle around the hole, perhaps 10 or 20 ft in diameter. Given the right-to-roam provisions—which we all welcome—what is the legal obligation? If a farmer goes out one morning and finds a dead sheep in a little hole in a boggy bit of land, does he do nothing to fence it off? Some of the stone walls are very high, particularly when the banking beneath them has been undermined. If a farmer suddenly finds that a stone wall is about to fall down, does he do nothing about it? Or does he go to the farm office, eat his morning snack and start applying to the Minister for permission to fence off the bit of wall for a period? That ain’t going to happen.

The right hon. Gentleman is presenting a powerful argument. If a stone wall is known to be dangerous and a passer-by is injured, the farmer’s insurance policy will be worthless if he has not taken steps to do something about it.

The hon. Gentleman is absolutely right. In the management of thousands of acres of common, hazards are posed daily to the farmer, to his animals and to walkers every day. Anyone who walks on the Cumbrian commons will find little pockets in which fencing has been put up around hazardous areas. That is the way in which the land is managed, and, with the best will in the world, those who manage it are not going to apply for notification from the Minister.

We do not want whole swathes of common to be fenced off. We do not want to hear the excuse “The whole common is boggy: we had better fence off 1,000 acres in case someone gets stuck in it.” Of course that will not wash. But we do need a de minimis requirement. We cannot invent the details—as Opposition Members, we do not have access to all the lawyers—but I think the Minister should draw up regulations that would permit fencing for human safety purposes, animal welfare purposes and conservation purposes.

If there is a fire on the heather, it will need reseeding, and a farmer will fence off a few hundred yards for the spring, until the grass grows in the summer. That keeps the sheep off the area and gives it a chance to recover. Those are all day-to-day management practices, and they will continue whatever we say here. I just do not want those simple everyday tasks to be a crime or illegal, because farmers will not apply for licences to do what has been done for hundreds of years.

We do not want to drive a coach and horses through the Bill, and the amendment would not do that. It tries to set a minimum standard, and would allow small works for a short time for certain defined purposes. I am sorry that the Government have not tabled an amendment on this point, and I hope that there is scope in the Bill somewhere for de minimis regulations to set a threshold so that farmers can carry out such tasks without having to apply for permission or a licence to do so. Otherwise, the Minister will be a very busy man.

I echo the remarks made by my neighbour and right hon. Friend the Member for Penrith and The Border (David Maclean). Our constituencies are very similar in landscape and share a military training area. I can also vouch for how well Defence Estates manages the Otterburn training ranges. They are a first class example of good conservation.

The Minister may have an escape route, which he will need, because clause 38 is very prescriptive and could cause problems. Clause 40, however, will allow the introduction of regulations, and I hope that he will introduce regulations that will advise on this point. As my right hon. Friend has just said, the everyday activities of hill farmers would put them in breach of some of the restrictions in clause 38. As the hon. Member for Sherwood (Paddy Tipping) knows, the north Pennines are riddled with underground shafts, left by the lead mines. Indeed, one can still travel four or five miles underground in old tunnels, if one knows the way, that were carved in the rock by the lead miners. Sometimes the old shafts open up and are clearly a danger both to livestock and to people who have the right to roam in the area. It is reasonable for a farmer, therefore, to put up some fencing around it. Similarly, there is often bad weather at lambing time, so people put up temporary lambing sheds, either polytunnels, which are not very attractive, or old containers, which are even less attractive—that is farming in the hillsides. It is nonsense to suggest farmers would be in breach of this legislation if they were to do that.

The question also arises in connection with the maintenance of paths and roads. The north Pennines have a wide network of tracks, some of which get very boggy. On the more heavily used tracks, such as the Pennine way, people divert around the boggy patch and spread the path wider and wider. A farmer may dump some spare stone at that point to create some hard standing and stop the widening of the path, which damages the surrounding landscape, and protect the delicate turf.

All the examples that the House has heard today are important to day-to-day management of the land. At the moment, local farmers have to get consent if they want to put up some fencing, and the procedure is extremely cumbersome. In one case, an application to put up permanent fencing to stop animals straying on to an increasingly busy road went through the whole planning procedure and was eventually determined by a planning inspector in Bristol. That sort of thing takes months. I hope that the Minister will be able to frame regulations under clause 40 to introduce a de minimis criterion so that farmers who do sensible things in the normal course of their activities are not impeded or placed on the wrong side of the law.

This is an important debate. We had a similar debate in Committee, and if nothing is done to amend the clause, the Bill could come into disrepute. As the clause stands, it will impede the natural husbandry of common land and, more importantly, it will pose several problematic legal conundrums. I referred to one in an intervention in the remarks by the right hon. Member for Penrith and The Border (David Maclean). Clearly, no farmer could with any confidence rely on an insurance policy if there was an imminent danger that he knew of and did nothing about. The example given was to do with a stone wall that might be on the verge of collapse, but there are many others, such as to do with disused mine shafts or holes that appear in bogs, all of which are daily occurrences on the uplands.

The hon. Member for Hexham (Mr. Atkinson) has ingeniously given the Minister what appears to be a lifeline. The point raised is important. In debate in Committee with the Minister’s predecessor—who, I might be so bold as to say, was also a reasonable man—he would not accede on this, which I could not understand because just using the words de minimis without some force behind them does not take us very far. What was said was that the offender could be investigated and taken to court and then the case would be thrown out. That is all well and good, but what about all the time, money and effort that are put into bringing that person to court before it was thrown out because it was de minimis? That is a scandalous way of looking at things. We are making law here; we are making law that will probably last for the next 50, 60 or more years.

I urge the Minister to consider the good sense of the arguments in this case. He has to do something—through regulation, or however else he might do it. Otherwise, there is a potential problem in this part of the Bill, which, as I have said, would bring it into disrepute. That would be a great shame, because I, along with other Members in all parts of the House, commend much of the Bill, but this is a flaw that we will all come to regret, as with the dangerous dogs legislation.

This group of amendments has certainly provoked much very interesting debate and raised important questions that we must grapple with.

Amendment No. 114, tabled by the hon. Member for South-East Cambridgeshire (Mr. Paice), would exempt works on common land from the part 3 consent requirement if they are for the purposes of user safety, animal welfare or conservation, and are either urgent and necessary while a consent application is under consideration or will be on the land for not more than a limited period to be prescribed by regulations. Although I fully understand the aim behind the amendment, it would pre-empt the thorough consideration we wish to give to whether any particular types of works on common land, over and above those already described in clause 38(6), should be exempted from the normal requirement for consent under the Bill.

Clause 43 allows us—subject to the negative resolution procedure—to make such exemptions by order for a range of specific purposes; essentially, they are use of the land for access, recreation or sporting purposes, exercise of rights of common, nature conservation or heritage preservation. These grounds would between them be likely to embrace most of the practical scenarios that amendment No. 114 would address. In addition, we will have power under clause 40 to prescribe fast-track procedures for certain types of works or particular circumstances, if we conclude that that makes sense. During animal health crises, there are also emergency powers that may in any event override the need for consent under the Bill, and there may be other statutory powers to act in emergencies that would exempt necessary works from the consent requirement.

We intend to consult fully—I take on board the point of the hon. Member for Hexham (Mr. Atkinson)—about our approach to the use of the exemption power. It is important to be able to draw on a full range of views and experience before we make decisions on this important issue. We have already indicated that any exemptions we make by order under clause 43(1) are likely to relate to works of a minor or temporary character. Beyond that, we do not want to prejudge the issue by including further provision in the Bill about what is to be exempt.

May I just correct an impression that might have been given by the right hon. Member for Penrith and The Border (David Maclean)? There is no question that crimes would be committed. The breach of clause 38 is not an offence; it is a matter for civil enforcement through the civil courts. In the 80-odd years since the enactment of section 194 of the Law of Property Act 1925, there have been no problems with sheep fences—an issue to which one Member referred earlier. Having made those points, I hope that the hon. Member for South-East Cambridgeshire will withdraw his amendment.

The Minister thinks that the gist of my amendment is covered in the powers contained in the fast-tracking procedure and in clause 43, which deals with the power to exempt, but can he clarify one point? According to my reading of clause 43(1), the Minister will be able to exempt only

the carrying out by a specified person of specified works on specified land”.

Although subsection (b) widens that to include “any land”, the fact remains that the clause refers to the carrying out of such works

“by a specified person, or a person of a specified description, of works of a specified description”.

Does the Minister really believe that that creates the flexibility to deal with the issues that my hon. Friends and I have been discussing this afternoon? The examples of what are to be exempted are highly specific, rather than general. It is obviously impossible to say who should erect an emergency fence to protect children from falling into a mineshaft, for example, or to specify particular works. If one tried to list the circumstances in which an emergency might arise, one would be bound to miss some because, by their very nature, such circumstances are unforeseeable. My concern is whether the Minister has sufficient flexibility in clause 43 to do what he suggests he could do.

The hon. Gentleman puts a question that is absolutely to the point, and the answer is yes, we do believe that clause 43 will give us the flexibility that we require. But in framing subsequent regulations, we will obviously take very careful note of the view expressed by the House this afternoon, and of the potential pitfalls to which we have been alerted.

Government amendment No. 76 echoes a similar provision in clause 43(5). It enables an order to be made by the national authority, exempting certain land from the controls on works in clause 38. An order could be made under this amendment only in relation to land to which the controls on works under section 194 of the Law of Property Act 1925—the predecessor provision to clause 38—have already ceased to apply. So this amendment and the existing clause 43(5) merely give us the option to preserve the exemptions that are already in place, and we see that as entirely proper.

Generally, section 194 of the 1925 Act applies to land that was subject to rights of common in 1926. Where all rights of common have since been acquired under any statutory power, such as a power of compulsory purchase, section 194 will cease to apply to that land. It is in those circumstances that we would have the discretion to make an order under this amendment.

It will not surprise Members to learn that we have in mind a particular case: Warcop military training area, which is a firing range in Cumbria. The rights of common there were acquired in 2003 following a public inquiry, and the controls on works under section 194 therefore ceased to apply at the same time. There is uncertainty about Warcop’s status, and I share the concern of the Under-Secretary of State for Defence, my hon. Friend the Member for West Bromwich, East (Mr. Watson), that clause 38 could re-impose those controls. Government amendment No. 76 will enable us to address the issue at Warcop. My hon. Friend and I are committed to consulting at a later date—I give that commitment, as my hon. Friend the Member for Sherwood (Paddy Tipping) asked me to do—on how best to address the problem in the light of this amendment, so that there is no interference with the delivery of our armed forces’ training needs. It might help if I add that my Department is not aware of any other site where the circumstances would enable an order to be made using the powers conferred by this amendment.

I turn now to Government amendments Nos. 78 to 80, which deal with the National Trust. The House will recall from earlier debates that the trust was concerned about the impact of the Bill on the National Trust Acts. I have since met Fiona Reynolds, the trust’s chief executive, and am pleased to say that we have been able to reassure the trust that the arrangements for improved management of commons set out in part 2 of the Bill do not represent any practical threat to its excellent management of its very extensive common land holdings.

However, Fiona Reynolds has also pointed out that the power in clause 44(2) to amend local or personal legislation by order

“for the purpose of making provision about works”

may be too broad. The trust is concerned that it would allow such an order to repeal relevant powers taken by it under the National Trust Acts. Of course, that is not our intention, and the amendments that we consider necessary to those Acts are already set out in paragraphs 3 and 4 of schedule 4.

Government amendment No. 78, which builds on an amendment proposed to us by the National Trust, addresses that matter. It makes it clear that the purpose of the power is simply to enable any existing consent criteria or procedures for works carried out under local or personal legislation to be made consistent with the criteria and procedures set out in part 3 of the Bill. The amendment does this for both the current subsections (2) and (4) of clause 44, and obviates the need for subsection (5). Government amendments Nos. 79 and 80 are consequential.

As I understand it, the National Trust supports the generality of the Bill’s provisions, and the tabling of Government amendment No. 78 leaves it content that the Bill will not prejudice its interests.

Amendment No. 121, tabled by my hon. Friend the Member for Sherwood, stems from an amendment that we made to the Bill on Third Reading in another place. That Government amendment concerned section 194 of the Law of Property Act 1925 which, as I have already said, is the current statutory provision about consent for works on commons. The Bill will repeal section 194 in due course, but paragraph 6 of schedule 4 makes transitional provision about enforcement under the section until it is repealed.

Originally, paragraph 6 of schedule 4 provided for any person or organisation to seek enforcement action, in the county court, against works undertaken without authority under section 194 of the 1925 Act. Our amendment in the other place said, in effect, that that did not apply to works undertaken before the Bill was introduced into the House of Lords last June—hence the date. In such cases, the status quo would prevail: that is, that only the district, county or unitary council—in Wales, the county borough—the lord of the manor, the owner or others with a legal interest in the land should be able to seek an enforcement order from the county court. Amendment No. 121 would reverse that change, so that any person could seek enforcement, even against “old” works.

We are committed to the principle that, if works are unlawfully undertaken on common land after the introduction of this Bill, anyone should be able to ask the court to take action. I think that that is common currency between me and my hon. Friend the Member for Sherwood. Everyone now has a direct interest in keeping commons open and unspoilt, thanks to the Government’s historic achievement in giving people legal access rights over commons throughout the country. So for the first time, the Bill extends the power to seek enforcement action against unlawful works to any person or organisation.

My hon. Friend the Member for Sherwood has a distinguished record of personal interest in open space protection and public access, and I fully understand why he has proposed amendment No. 121, but it is about the past, not the future. The issue that it raises really boils down to this question: should any person or organisation be able to go to the court and ask it to enforce against unlawful works that were undertaken before the Bill even began its passage through another place?

In practice, the question is not that simple. The Limitation Act 1980 rules out enforcement against works undertaken more than 12 years ago. Moreover, as I am sure my hon. Friend the Member for Sherwood is aware, the effective window for action tends in fact to be much narrower than that, because the courts look very critically at any suggestion that they should make any type of order against works that are more than a few years old.

In reality, there is likely to be a limited number of cases in which the amendments would make a practical difference to the enforcement position. Our view is that where works were undertaken within the narrow time window and without consent it would not be right for us to open the scope for anyone to seek enforcement action. In the end, those responsible for such works did what they did on the basis of the more limited enforcement regime that then applied. Paragraph 6 as it stands strikes the right balance, and we do not think that it would be just to allow any person to apply to the county court for enforcement action in pre-Bill cases. The situation may, however, be different for future changes to unlawful old works. I hope that that gives my hon. Friend the Member for Sherwood a glimmer of hope.

Will the Minister explain in plain words why the Government changed their mind on the date? The original Bill was satisfactory. Why was it changed in another place?

In our view, unless national authority consent is obtained, any person will be able to seek enforcement action against the maintenance or extension of unlawful old works. If the practical effect of the new work would be further to impede access, compared with the position before the new work was undertaken, the situation is as set out in the letter I wrote on 11 May to members of the Standing Committee. The letter is in the Library, but I might helpfully quote from it on maintenance of works:

“There appears to have been some confusion about this issue during debate so I thought it might be helpful to set our intentions as to whether consent under clause 38(1) will be required for maintenance to existing works. Works of any description will require consent only if they take place on the common, not if they stand on land adjoining the common, for example on neighbouring farmland. The physical boundaries separating the common for adjoining land, for example the wall between the common and the in-by or enclosed land, is customarily the responsibility of the occupier of that land and not part of the common.”

So, works of maintenance could not require consent.

“New works on the common will not require consent if they are merely maintaining original structures that are lawfully there, provided that maintenance does not create any greater practical impediment to access than the original structure”.

Examples might be structures that receive consent under section 194 of the Law of Property Act 1925 or those where such consent was never needed initially, perhaps because the original works were undertaken before 1926 or under statutory powers.

“New works on the common will not require consent if they are merely maintaining original structures that are lawfully there6— provided that maintenance does not create any greater practical impediment to access than the original structure.

If the original works were unlawful when originally constructed, then the situation is a little more complicated. Firstly, if they remain unlawful nothing in the Bill will change that and maintaining them will require consent as for any other works which restrict or impede access. Indeed the original works themselves will continue to require consent. We have clarified the fact that the appropriate national authority will be able to entertain a ‘restrospective’ application and this is set out in clause 39(7) of the Bill.

If the original works are no longer unlawful (because the time in which enforcement action could have been taken under the Limitation Act 1980 has expired) consent will be needed for maintaining them in the same way that it would be needed for other lawful works. This is where only if doing so creates any greater practical impediments to access than the original structure.

Any new works that would increase the size or footprint of previous works, and thereby the degree of impediment to access, will always require consent whether or not the original works had consent. This is because they are not works of maintenance, but works which themselves prevent or impede access.”

I hope that that is helpful and provides light at the end of the tunnel for my hon. Friend the Member for Sherwood. Notwithstanding the cut-off date referred to in amendment No. 121, access authorities have powers under chapter 3 of part 1 of the CROW Act to provide means of access on access land. That would provide a way in which access could be promoted, whatever the status and age of the fencing.

My hon. Friend the Member for Sherwood asked what is, on the face of it, a very simple question—why did we change? I have not yet answered it. It has been evident today that the Government have changed a great deal since the Bill was introduced. On the whole, I believe that the changes have improved it. We have had to reflect on the balance of arguments presented to us both in Committee and in the other place. The consensus and compromise that we have sought to bring will enable us to achieve the intention that we all share—to improve the management of our common lands. That is what prompted us to change our views, so I ask my hon. Friend not to press his amendment.

I am grateful for the Minister’s remarks on amendment No. 114. It was clear from the comments of all hon. Members that they supported my aim. If I may put words into the Minister’s mouth, I do not think that he entirely disagreed either, but he thought that he could achieve that aim in other ways. Ministers always say things like that. The principle remains that we do not want, and it would be unwise were it to happen, the national authority—in this case, the Minister—to be besieged by thousands of very minor requests to create works that could be dealt with more simply.

We will look carefully at the regulations and I hope that the Minister is right about the flexibility in clause 43, which he mentioned in response to my earlier intervention. I hope that he is also right about the ability to make exemptions and about fast-tracking. I was proposing not just fast-tracking, but no tracking, in that people should be allowed to use their initiative where appropriate in cases of emergency. We will study what the Minister comes up with. I know that he meant it when he said that in drafting the regulations, he will heed the views expressed this afternoon. I appreciate that.

I am sure that the Minister understands that this is an important point. Nobody wants “unlawful fences”, to use the words of the hon. Member for Sherwood (Paddy Tipping), but there may be times when a temporary arrangement is necessary, so a blanket opposition is not helpful. I suspect that even the most rabid enthusiast for open access would accept that there are times when common sense dictates that measures must be taken. What is important is that the common sense extends to not having to go through all the ramifications of applying to the Secretary of State for consent to do something. If the Minister accepts that argument and his regulations achieve that aim, I shall be happy. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43

Power to exempt

Amendments made: No. 76, in page 25, line 18, at end insert—

‘(4A) Where—

(a) any land was at any time before the commencement of this section land to which section 194 of the Law of Property Act 1925 (c.20) applied, but

(b) at any such time that section ceased to apply to the land by virtue of subsection (3)(a) of that section,

the appropriate national authority may by order provide that section 38 is not to apply to the carrying out of works, or works of a description specified in the order, on that land.'.

No. 77, in page 25, line 24, leave out ‘subsection (1) or (5)' and insert ‘this section'.—[Mr. Michael Foster.]

Clause 44


Amendments made: No. 78, in page 25, line 31, leave out subsection (2) and insert—

‘(2) A national authority may for any purpose specified in subsection (2A) by order amend—

any local or personal Act passed before this Act which contains provision for that authority to consent to works on land which is common land; and

(b) any Act made under the Commons Act 1876 (c.56) confirming a provisional order of the Inclosure Commissioners which contains provision for that authority to consent to works on land to which the Act applies.

(2A) The purposes referred to in subsection (2) are—

(a) that of securing that sections 39 and 40 apply to an application for the consent referred to in paragraph (a) or (b) of subsection (2) as they apply to an application for consent under section 38(1);

(b) that of securing that section 41 applies in relation to the carrying out of works in contravention of the provision referred to in paragraph (a) or (b) of subsection (2) as it applies to works carried out in contravention of section 38(1).'.

No. 79, in page 25, line 34, after ‘subsection (2)' insert—

‘“national authority” means—

(a) the Secretary of State; and

(b) the National Assembly for Wales;'.

No. 80, in page 25, line 39, leave out subsections (4) and (5).—[Mr. Michael Foster.]

Clause 46

Powers relating to unathorised agricultural activities

I beg to move amendment No. 118, in page 26, line 23, leave out ‘an agricultural' and insert ‘any'.

With this it will be convenient to discuss the following amendments: No. 119, in page 26, line 39, leave out ‘agricultural'.

No. 120, in page 26, line 41, leave out ‘agricultural'.

The previous group of amendments dealt with unauthorised works on the commons and the current group covers unauthorised activities, which the Bill defines as unauthorised agricultural activities. For consistency, there should be another amendment to remove “agricultural” from the clause heading. It is interesting that subsection (8) on page 27, which defines unauthorised activities, does not include the word “agricultural”. That is the point that the amendments try to make.

Activities, which are not necessarily agricultural, that are detrimental to the qualities that we want to conserve sometimes take place on the common or the village green. If unauthorised or unwise agricultural activities take place, of course the national authority should have the power to intervene. However, activities that are not agricultural could be equally detrimental.

When we entered into those discussions previously, the Under-Secretary’s predecessor said, “Oh well, those activities are illegal anyway.” I have tried to find examples of activities that might be detrimental to people’s enjoyment of access or biodiversity that are not illegal but will not be helpful in managing the commons or village greens. They include informal dog racing and other informal sports and activities, which might be acceptable but, if they expanded or their frequency increased, would be unacceptable to people who want to enjoy other informal activities or wish to use commons for grazing and agricultural purposes.

The amendments would therefore remove the word “agricultural” and thus cover more than simply activities that are associated with agriculture. I believe that the farming community would welcome them because, if they were accepted, the Bill would be perceived to deal even-handedly with everyone who has the interests and well-being of commons at heart. I look forward to the Under-Secretary’s response to those simple amendments, which would add something to the Bill.

I am suspicious of the amendment because it may extend the clause’s scope and intention far too widely. My ears pricked up when the hon. Member for Brecon and Radnorshire (Mr. Williams) mentioned unauthorised dog racing. In our part of the world, we have an old activity called hound trailing, which is popular in the Lake district and in my constituency. Indeed, we had an international—because somebody came from Cork—hound trail meeting the other Saturday, which was a good occasion. The amendment would catch that because the event takes place across a common.

I can envisage problems with informal, sensible activities on the village green that could be caught by the amendment. What about an impromptu football kick-about? What about flying a model aircraft or simply having a party? The amendments risk being far too draconian. As I understand it, authorised activities are a matter for the slightly sinister organisation referred to in the Bill as the “appropriate national authority”—a Kafka-esque sounding body. If something is not authorised by the appropriate national authority, the activities that I mentioned could be caught by the amendment. It could have an unintended consequence of stopping people’s legitimate enjoyment of village greens.

The amendments would considerably broaden the existing power in the Bill for the national authority to deal with unauthorised agricultural activities, extending it to cover all unauthorised activities. The power in the clause is intended as a power of last resort to deal with difficult agricultural problems that are damaging the common and cannot be resolved by other means. It is deliberately focused to address problems such as rights’ holders who may exceed the number of animals that they are allowed to depasture on a common, who are engaging in unauthorised cutting or removal of vegetation or are not removing animals during periods when the common should be cleared of livestock. We do not want to expand the power to encompass a large number of non-agricultural activities that can already be more effectively tackled locally.

I pick up the theme that the right hon. Member for Penrith and The Border (Mr. Maclean) began. Telephoning the Secretary of State in Westminster to report, for example, motorbikes racing across a common, will not be as effective as contacting the local police, who are much closer to the problem, much better informed, and more able to deal with such issues.

There are already existing enforcement powers to deal with many of the problems that Members have mentioned as occurring on commons and it is not our intention to duplicate them; for example, several Acts deal with driving on common land. Section 193 of the Law of Property Act 1925 makes it an offence where any person without lawful authority drives on land to which the section applies. The section applies to what are often described as “urban commons”—commons that before 1974 were within urban districts or boroughs—and other commons that have been dedicated by deed for public access.

Section 34 of the Road Traffic Act 1988 makes it an offence where a person without lawful authority

“drives a mechanically propelled vehicle...on to or upon any common land, moorland or land of any other description, not being land forming part of a road”.

There is also a host of local byelaws that prohibit driving on common land and greens. Furthermore, village greens are afforded protection under section 12 of the Inclosure Act 1857, which protects greens from injury or damage and interruption to their use or enjoyment as a place for exercise and recreation. It may also be used against those who drive on greens.

I stress that the clause is envisaged as a power of last resort. To widen it as the amendments would allow is not acceptable, so I hope that the hon. Member for Brecon and Radnorshire (Mr. Williams) will not press them.

I accept what the Minister says about the clause being the option of last resort. I hope that many of the agricultural problems will be sorted out by the commons councils, so the opportunity for the national authority to exercise the powers would be extremely rare and remote.

There are hound trails in my constituency, too. When I attended the Pont ar Elan show a week ago last Saturday, it was a privilege to see not only hound trails but also dog racing on the common; but it was taking place with the express permission of the commoners’ association. Our amendment would address only activities that were undertaken against the express will of commoners’ associations, but as I would not want the Minister’s weekends disturbed by people ringing up to report informal dog racing, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 81, in page 27, line 8, leave out ‘association' and insert ‘council'.

No. 82, in page 27, line 18, leave out ‘association' and insert ‘council'.—[Mr. Watts.]

Clause 57

Natural England

I beg to move amendment No. 83, in page 31, line 36, leave out ‘1' and insert ‘1(4)'.

This minor and technical amendment deals with a transitional provision in the clause. References in the Bill to Natural England are to be taken as references to English Nature until that body is formally dissolved. The amendment ensures that the provisions function effectively in relation to the commencement of section 1 of the Natural Environment and Rural Communities Act 2006, because, at present, clause 57 refers to the commencement of section 1. However, that gives rise to some uncertainty, because section 1 has already been commenced to the extent of establishing Natural England as a skeleton body. The amendment makes it clear that the transitional provision has effect until English Nature is abolished on the commencement of subsection (4) of section 1, which we expect to take place on 2 October this year.

This is a small technical amendment and I rise on a small technicality. We received a briefing from English Nature which refers to the letter Sir Martin Doughty received from the Minister, no doubt relating to this clause among others. There is a lot of detail about Sir Martin’s reply to the Minister but we have not actually seen the Minister’s letter, so my first brief point is that I hope the Minister will put a copy of the relevant letter to Sir Martin Doughty in the Library. For accuracy, I shall quote a few words from the briefing:

“The Parliamentary Secretary for Biodiversity, Landscape and Rural Affairs wrote to Sir Martin Doughty, Chair Designate of Natural England, following a debate at Standing Committee concerning Natural England’s role in the implementation of the Commons Bill. In his response of 24 May 2006, Sir Martin highlighted the considerable importance of Common Land for a wide range of public interests, justifying significant involvement for Natural England within and beyond the confines of the new legislation. He agreed that Natural England should assume a central responsibility for the management and protection of common land, and of town and village greens, and expressed confidence that this role of ‘public sector champion’ could be achieved without any requirement for a specific statutory duty.”

The second part of my technical point is that I hope that, in addition to the first letter that the Minister wrote to Sir Martin, which he will put in the Library, we will have sight of the next letter he is going to write to the wonderful Sir Martin Doughty, saying, but in better civil service language, “Get back in your box, Sir Martin. You will stick within the confines of the legislation, and you will not become a champion for the management of our Cumbrian commons—which you have never done before—without any statutory cover for doing so. You will not go beyond the confines of the new legislation.”

I do not want to labour this little point. English Nature is superb in many of the things that it does but it has no track record of managing our wonderful Cumbrian commons. The idea that it is suddenly going to become public sector champion of running Caldbeck common on our fells, and that it is going to go way beyond its statutory duties and do things beyond the confines of the legislation, is not acceptable. I hope that the Minister will say, “Sir Martin: carry on doing the wonderful job you are doing in Natural England, do it within the law, do it within the spirit of the Act, but do not step out of the box too much.” I just wanted to make that technical point.

Technology has obviously moved on since my day if that is a technical point. I am happy to accede to the right hon. Gentleman’s request that the correspondence be placed in the Library. I think that the original letter was from my predecessor, my hon. Friend the Member for South Dorset (Jim Knight), now the Minister for Schools, but I am happy to make the correspondence available.

I probably have no need of correspondence with Sir Martin Doughty because he will no doubt read today’s Hansard and will read the right hon. Gentleman's remarks for himself. I suspect that the right hon. Gentleman may be the one who enters into further correspondence with Sir Martin.

Amendment agreed to.

Clause 60


Amendment made: No. 84, in page 32, line 29, leave out ‘association' in both places it occurs and insert ‘council'.—[Mr. Watts.]

Schedule 1

Authorised severance

Amendments made: No. 85, in page 34, line 8, leave out ‘association' and insert ‘council'.

No. 86, in page 34, line 19, leave out ‘association' and insert ‘council'.

No. 87, in page 34, line 32, leave out ‘association' and insert ‘council'.

No. 88, in page 34, line 33, leave out ‘association' and insert ‘council'.

No. 89, in page 34, line 35, leave out ‘association' and insert ‘council'.

No. 90, in page 35, line 2, leave out ‘association' and insert ‘council'.

No. 91, in page 35, line 17, leave out ‘association' and insert ‘council'.—[Mr. Watts.]

With this it will be convenient to discuss Government amendments Nos. 92 to 94.

I suspect that I have been struck off the English Nature cocktail party list for the foreseeable future.

I will use the short speech rather than the long speech that I have with me today. It was drafted for me by the Federation of Cumbria Commoners, and I make no apology for that; it will be one of the better speeches that I have made on the Bill, if I stick to the script.

First I pay tribute to the Minister, and particularly to his civil servants, who have been assiduous in paying attention to and trying to balance the different views of commoners but paying attention to what the Federation of Cumbrian Commoners had to say. They visited the area at least twice to obtain indepth knowledge of how the commons are run.

I know it is a common view among farmers that no one in the Rural Payments Agency or the Department for Environment, Food and Rural Affairs has ever seen a cow or a sheep, but those I have talked to in Cumbria are very appreciative of the state of knowledge of the DEFRA civil servants who have been dealing with the Bill. They should be promoted to the bananas directorate, which I understand involves a nice bit of foreign travel. They cannot go to the Wine Standards Board; that is another good number, but the Department is giving it away to the Food Standards Agency.

Amendment No. 115 is an important little amendment. It is not just a technical one, and it is not an amendment in the style of my late right hon. Friend Eric Forth MP, who would have always moved amendments of this nature. The federation says that it is strongly in favour of this amendment because it ensures that there is flexibility as to whether or not owners’ consent will be required if an order is issued allowing local severance.

This is a compromise on my part. In Committee I strongly took the view that this part of the clause should be deleted, that there should be no circumstances where the Government should have this power, and that owners' consent should never, ever be required. I now accept that this is a sensible compromise that does not tie the Minister’s hands either way.

The Cumbrian commoners accept that there is differing practice across the country and the Bill deals with that through not making severance indiscriminately available. Their concern is to make sure that an order works if and when it is made. Without the amendment, there is a risk that it will not. As the Bill stands, an order allowing local severance is of little value, because it requires the owner of the soil of the common to consent to the transfer and it will rarely be in the owner’s interest to give that consent.

In Cumbria, severance has been commonplace for many decades without owner’s consent. My amendment will ensure that if an order is made allowing severance on a local basis, the national authority will not have to require the owner’s consent. It may or may not decide to do so, depending on the particular situation and having regard to any representations made to it.

The relationship between the owner of the soil and the owner of common rights is not the same as that captured in landlord and tenant legislation. They both have freehold interests. Having one person restricting the property rights of another is quite different from the state licensing the exercise of property rights—for example, through planning laws. It may even be a breach of human rights legislation to give one person the right to interfere with the rights of ownership of another.

The Government have tabled an amendment that would deem that consent has been given if it is considered to have been unreasonably withheld by the owner. That is not adequate by itself. In many cases, the cost of fighting an owner’s veto will exceed the value of the transaction to the commoner. From the perspective of the Cumbrian commoners, the absolute requirement for consent in effect turns the clock back to a feudal era. It is inappropriate for the 21st century.

In many cases, those common rights have considerable financial value in the sense that, if a farm is sold, the common rights are sometimes sold separately. If the Bill is not amended, it will mean that somebody who paid additionally for those common rights could lose a substantial amount of that value when they came to sell them again.

That is absolutely right. The rights would have little value then. I perfectly respect those who manage our countryside and have shooting rights, but their interests are different from the interests of small farmers and commoners. Quite simply, if I were the lord of the manor and I had the shooting rights, I would be the nasty sort who would veto every single transfer. The rights then become valueless and I buy them up cheaply and improve my own shooting rights. That is a legitimate thing for the person with the shooting rights to seek to do, but the House of Commons should not make it easier for that person by devaluing the value of the rights. If someone wants to buy up the rights of grazing to improve his shooting, let him do so, but let him, or her, do so at full market value. The amendment permits an even playing field. People can buy up the rights if they want to and the owner can sell them at the commercial rate.

We have given the Minister flexibility. I understand that he might be sympathetic to the amendment. I have checked with our Front-Bench spokesman in the other place and she is content, so I am confident that we will not have to deal with the matter again in this Chamber. I implore the Minister to grasp the nettle and ensure that there is fair play for all who are involved in the management of the countryside.

Unusually, I am going to cross swords slightly with my right hon. Friend the Member for Penrith and The Border (David Maclean). He well knows that the current phrasing of the Bill is the result of a lot of discussion in the other place, where the Bill started its proceedings, and stemmed from concern that—picking up on the point that he made—those who have sporting interests on the moors, and particularly on the Yorkshire moors, would find them seriously damaged if the rights were sold or transferred in a way that was not helpful overall. There was a lot of discussion in the other place and that is how the current words came to be included. I fully recognise—as I am sure that he will acknowledge that I did in Committee—that to give the landowner the absolute right of veto is wrong. That is why, in Committee, I proposed moving forward on the basis that, if the landowner unreasonably withheld consent, the Minister should be able to override that. I remain of that view, so I welcome Government amendments Nos. 92 to 94. The question is whether we need to go a step further, as my right hon. Friend proposes.

As I read the Government amendments, they say that if a Minister feels that a landowner has unreasonably withheld consent, that can be overridden. I should point out to my right hon. Friend that we will be considering few such cases in the future because the Bill is designed to end the principle of severance, rather than to allow severance. The Minister would be required to issue an order before severance could take place. Under the Government amendments, he would then have to consider whether consent had been unreasonably withheld.

The Bill already requires the Minister to consult everyone, including the owners of the land or their representatives. My right hon. Friend’s amendment relates to the measure that says that the Minister “must” make provision for whether the landowner has given consent. I am not sure whether the extra step of changing the word “must” to “may” is really necessary. I take the view—this is in some ways where my right hon. Friend and I slightly disagree—that a landowner is a property owner with certain rights. Yes, he would get consulted, but he should have a bit more say than that. I was happy with the compromise that was agreed among the different views in another place, which is represented by the Government amendments, but I am not entirely convinced that the Government would be right to accept the word “may” instead of “must”.

If the Minister were to accept my right hon. Friend’s amendment, he would obviously take account of the geographical location of the individual common in question when making an order, and of where the rights to the common pertained. He would also take account of whether the location was an area such as Cumbria, where the landowner’s consent would not be especially relevant, an area on the other side of the Pennines, or a place such as the constituency of my hon. Friend the Member for Hexham (Mr. Atkinson). However, my right hon. Friend’s amendment would give the Minister more discretion than the Government amendments.

My right hon. Friend has expressed concern in conversations with us about giving the Minister discretion to decide what unreasonably withheld consent is. However, his amendment would give the Minister even more discretion, not less. It is for that reason that I have yet to be convinced of it. I am sure that the Minister will make his views clear. I do not for a moment suggest that we will divide the House if he wishes to accept the amendment, but I am certainly not convinced that everyone in the other place will be happy with it. If the amendment goes forward to the other place, we will have to see what it decides. It would be a pity if the huge degree of consensus on the Bill overall, to which we will refer on Third Reading, was lost on this matter, but I fear that that could be the case. I look forward to hearing what the Minister has to say and finding out how he will respond to a tricky situation.

I speak in support of my right hon. Friend the Member for Penrith and The Border (David Maclean). It was said earlier that everyone has a slightly different vision of what a common is. Some see a common as an urban common, while others would think of a large upland common. My right hon. Friend and I share an identical type of common: large upland commons covering tens of thousands of acres. The situation for such commons is different from that in other parts of the country.

I agreed with what my right hon. Friend said about the way in which officials have worked hard to try to solve difficult problems, given that every common in various parts of the country has a different culture. There is no doubt that our upland commons in the north have a culture different from others. The difference for those in the north is this business of value with severance, and that is crucial. In normal circumstances, there is a value for a farm with attached common rights, but the value often increases if common rights can be sold separately from the dominant farm. Sometimes the value of the dominant farm will be different. In some circumstances it may be greater now without the commons. In other instances, people may wish to acquire the rights of the common to increase their grazing rights. It is a complicated matter and one where there is monetary value. If we do not accept the amendments, we will be devaluing the assets of farmers who have bought common rights separately as a separate transaction. That is wrong. I do not want to end the sense of compromise that we have, but this is a difficult issue. I would give some support to the amendment.

Government amendments Nos. 92 to 94 revisit the provision in paragraph 3 of schedule 1 about the permanent severance of rights of common. My starting point is that most grazing rights would never have been severable were it not for the unintended effect of registration under the Commons Registration Act 1965. Clause 9 reinstates the general prohibition on severance. Schedule 1 gives effect to some exceptions.

On Third Reading in another place, we responded to calls from Lord Inglewood and others to introduce a power for the national authority to enable permanent severance on a designated common by order. In moving an amendment, my noble friend Lord Bach said that the powers were “a reserve power only”. He added that that did not mean that we intended to use them, and said that there were no plans to do so. However, in Committee, the hon. Member for South-East Cambridgeshire (Mr. Paice) and the right hon. Member for Penrith and The Border (David Maclean), when they were agreeing with each other, sought to temper the requirement that the owner of a common must consent to any individual act of severance.

We accept the argument advanced in Committee that an owner might exercise a veto for the wrong reasons—for example, to secure a financial inducement—and the amendment enables us to provide in the order that consents must not be unreasonably withheld.

I move on to amendment No. 115. This has been an extremely good-natured debate. I trust that I will be forgiven if I savour this moment and this amendment and what is going on over on the Opposition Benches. As of this morning, I have had two separate speeches ready for the amendment: one to accept it and one to reject it. I left Opposition Members to struggle out the issue between themselves, to see who could vie most for my attention.

The amendment tabled by the right hon. Member for Penrith and The Border would go rather further than the Government amendment. It would give the national authority discretion about whether to include a requirement for the owner’s consent in any particular order. I have listened with care to the arguments advanced by the right hon. Gentleman. He represents the interests of his constituents with great tenacity. He has written to me twice on these matters. The way in which he has presented his case, both in correspondence and orally today, does him great credit.

The right hon. Gentleman has made the trenchant point that severance of common rights in the hills of Cumbria is not a recent innovation. As is often the case in those parts, the rights have always been quantified. The law has always recognised that those rights may be severed. Were we to contemplate an order to permit continued severance in such areas, we would certainly want to have a discretion not to require the consent of the owner. That discretion is not available to us as the Bill stands.

We remain of the view that there should be a general prohibition on severance. Indeed, the right hon. Gentleman has accepted that we are talking of exceptional circumstances. Should we be minded to make an order under paragraph (3) permitting severance in any locality, we should have a power to impose a condition requiring the consent of the owner to any particular act of severance. That will ensure that severance does not interfere with the proper management of common where the owner continues to take an active interest.

We believe that the Government’s amendments to paragraph (3) remain sensible and confer greater flexibility, but I am inclined to agree to the amendment of the right hon. Member for Penrith and The Border.

The Minister is taking a constructive approach to these matters. I am sorry that we were not able to produce a clear answer to his confusion. It is unusual that a Minister comes to the House without a clear line. I think that he was coming to that when I rudely intervened on him. I look forward to what he has to say. Suffice it to say, whatever the conclusion of the Government and another place, that we all accept that there is an important role for the landowner, but it is right that there should be a power to ensure that it is not an absolute veto. There is not a great deal to be achieved either way.

I am grateful to the hon. Gentleman, both for those remarks and for his note.

I commend the right hon. Member for Penrith and The Border on his legal skills. His amendment is of such a high standard that I am happy to accept it in its present form. If he decides not withdraw it, we would be pleased to add it to the Bill at this final hour. It is fitting, given that we have been considering arrangements for common lands that, in many cases, have been in existence for almost 1,000 years, that it should be a Labour Government who should ensure that the fight against feudalism and the striving for a classless society continue. I am delighted to accept the right hon. Gentleman’s amendment, and I trust that he will not withdraw it.

I am grateful to the Minister, both for his wise words, and for having the wisdom to make the right speech this afternoon. Naturally, I shall not withdraw the amendment, and I hope that we do not vote on it, as that is not necessary. I congratulate the Minister, at the close of our debate, on accepting the amendment. It is a long time since I have had an amendment accepted in the House, so I am slightly out of practice. I am grateful to the Minister for his kind words, but he should offer them not to me but to the Cumbrian Commoners Association, which is skilled and knowledgeable, because it has been dealing with commons for hundreds of years, and understands them. I am grateful that the Minister and his officials have listened to our point of view, and I assure him that we will not need to deal with the matter in the House for a considerable period. He has some flexibility available to him, but it he will be required to exercise his judgment only on rare occasions, and that is the way it should be.

Amendment agreed to.

Schedule 1

Authorised severance

Amendments made: No. 92, in page 36, line 9, after ‘include' insert ‘(a)'.

No. 93, in page 36, line 11, leave out ‘consent obtained' and insert—

‘(b) provision as to the circumstances in which consent may be regarded as having been obtained'.

No. 94, in page 36, line 11, at end insert—

‘( ) Provision referred to in sub-paragraph (5)(b) may include—

(a) provision for consent to be regarded as having been obtained if it is withheld unreasonably;

(b) provision for the circumstances in which consent is to be regarded as withheld unreasonably;

(c) provision for the resolution of disputes.'.--[Mr. Michael Foster.]

Schedule 2

Rectification of mistakes etc under the 1965 Act

Amendments made: No. 95, in page 36, line 33, at end insert—

‘Non-registration of common land

1A (1) If a commons registration authority is satisfied that any land not registered as common land or as a town or village green is land to which this paragraph applies, the authority shall, subject to this paragraph, register the land as common land in its register of common land.

(2) This paragraph applies to any land which—

(a) was not at any time finally registered as common land or as a town or village green under the 1965 Act;

(b) is land which is—

(i) regulated by an Act made under the Commons Act 1876 (c.56) confirming a provisional order of the Inclosure Commissioners;

(ii) subject to a scheme under the Metropolitan Commons Act 1866 (c.122) or the Commons Act 1899 (c.30);

(iii) regulated as common land under a local or personal Act; or

(iv) otherwise recognised or designated as common land by or under an enactment;

(c) is land to which this Part applies; and

(d) satisfies such other conditions as regulations may specify.

(3) A commons registration authority may only register land under sub-paragraph (1) acting on—

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.'.

Non-registration of town or village green

1B (1) If a commons registration authority is satisfied that any land not registered as a town or village green or as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, register the land as a town or village green in its register of town or village greens.

(2) This paragraph applies to any land which—

(a) on 31 July 1970 was land allotted by or under any Act for the exercise or recreation of the inhabitants of any locality;

(b) was not at any time finally registered as a town or village green or as common land under the 1965 Act;

(c) continues to be land allotted as specified in sub-paragraph (a);

(d) is land to which this Part applies; and

(e) satisfies such other conditions as regulations may specify.

(3) A commons registration authority may only register land under sub-paragraph (1) acting on—

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.'.

No. 96, in page 36, line 35, leave out sub-paragraph (1) and insert—

‘(1) If a commons registration authority is satisfied that any land not registered as common land or as a town or village green is land to which this paragraph applies, the authority shall, subject to this paragraph, register the land as common land in its register of common land.'.

No. 97, in page 37, line 30, leave out sub-paragraph (6) and insert—

‘(6) A commons registration authority may only register land under sub-paragraph (1) acting on—

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.'.

No. 98, in page 37, line 35, leave out sub-paragraph (1) and insert—

‘(1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove the land from its register of common land and register it in its register of town or village greens.'.

No. 99, in page 38, line 1, leave out sub-paragraph (3) and insert—

‘(3) A commons registration authority may only remove and register land under sub-paragraph (1) acting on—

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.'.

No. 100, in page 38, line 4, at end insert—

Buildings registered as common land

3A (1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove that land from its register of common land.

(2) This paragraph applies to land where—

(a) the land was provisionally registered as common land under section 4 of the 1965 Act;

(b) on the date of the provisional registration the land was covered by a building or was within the curtilage of a building;

(c) the provisional registration became final; and

(d) since the date of the provisional registration the land has at all times been, and still is, covered by a building or within the curtilage of a building.

(3) A commons registration authority may only remove land under sub-paragraph (1) acting on—

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.'.

No. 101, in page 38, line 6, leave out sub-paragraph (1) and insert—

‘(1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove the land from its register of common land.'.

No. 102, in page 38, line 13, leave out from ‘was' to end of line 15 and insert

‘provisionally registered as common land under section 4 of the 1965 Act'.

No. 103, in page 38, line 28, leave out sub-paragraph (3) and insert—

‘(3) A commons registration authority may only remove land under sub-paragraph (1) acting on—

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.'.

No. 104, in page 38, line 31, at end insert—

Buildings registered as town or village green

4A (1) If a commons registration authority is satisfied that any land registered as a town or village green is land to which this paragraph applies, the authority shall, subject to this paragraph, remove that land from its register of town or village greens.

(2) This paragraph applies to land where—

(a) the land was provisionally registered as a town or village green under section 4 of the 1965 Act;

(b) on the date of the provisional registration the land was covered by a building or was within the curtilage of a building;

(c) the provisional registration became final; and

(d) since the date of the provisional registration the land has at all times been, and still is, covered by a building or within the curtilage of a building.

(3) A commons registration authority may only remove land under sub-paragraph (1) acting on—

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.'.

No. 105, in page 38, line 33, leave out sub-paragraph (1) and insert—

‘(1) If a commons registration authority is satisfied that any land registered as a town or village green is land to which this paragraph applies, the authority shall, subject to this paragraph, remove the land from its register of town or village greens.'.

No. 106, in page 38, line 40, leave out from ‘was' to end of line 42 and insert

‘provisionally registered as a town or village green under section 4 of the 1965 Act'.

No. 107, in page 39, line 9, leave out sub-paragraph (i).

No. 108, in page 39, line 18, leave out sub-paragraph (4) and insert—

‘(4) A commons registration authority may only remove land under sub-paragraph (1) acting on—

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.'. [Mr. Michael Foster.]

Schedule 5

Minor and consequential amendments

Amendments made: No. 109, in page 44, line 37 leave out ‘association' and insert ‘council'. —[Mr. Michael Foster.]

Schedule 6


Amendments made: No. 110, in page 48, line 32, at end add—



Short title and chapter

Extent of repeal

Countryside and Rights of Way Act 2000 (c.37)

Section 68.'

[Mr. Michael Foster.]


Amendment made: No. 111, in line 1, at end insert

‘; and for connected purposes'.—[Mr. Michael Foster.]

Order for Third Reading read.—[Queen’s Consent, on behalf of the Crown, and Prince of Wales’s consent, on behalf of the Duchy of Cornwall, signified.]

I beg to move, That the Bill be now read the Third time.

I am pleased to stand at the Dispatch Box this evening with the task of sending the Bill to another place for, I hope and trust, their Lordships’ final blessing on a complex but extremely valuable piece of legislation that will protect and enhance our common land for years to come. Although my time as Minister responsible for the Bill has been brief, I can now profess to understand the intricacies of hefting and the significance of levancy and couchancy, as well as ancient rights of common such as blacksmut, hedgebote and whitestump. Blacksmut, I hasten to add, is the collection of charred root mould for fuel.

The Bill will protect some of our most treasured land in England and Wales for many years to come. Commons are an ancient institution that predate the Norman conquest. Today they remain important in the agricultural economy of upland areas in England and Wales, in providing a vital resource for biodiversity and recreation, and in forming a key part of our landscape. Many of our commons need help, and that is why the Bill is important. It will encourage more and better local management of commons through commons councils, and it will provide new powers to enforce against unlawful agricultural activities. It will allow us, too, to modernise the consent regime for works proposed on common land. It will drastically improve the system for registering commons and greens by bringing the registers up to date and keeping them so. We have even reached consensus on the thorny issue of severance of common rights—a Herculean achievement in its own right.

We are proud of the Bill, which has benefited from the close scrutiny it has received, and the changes that have been made to improve it. I have read the debates in another place and this House, which were productive, constructive, at times amusing and, most importantly, well intentioned. Today I have gained a first-hand appreciation for the genuine determination of hon. Members on both sides of the House to do the best job that they can. I pay tribute to the commitment shown by hon. Members and to the detailed knowledge and experience that many of them have brought to our deliberations from their years of interest in the subject. I also thank the Deputy Speakers and Chairmen who have chaired our discussions on Report and in Committee.

I acknowledge the support of the members of my team in the Department. They have worked long and hard to bring the Bill to this stage, and they have worked tirelessly with everyone who has shown an interest in the Bill to establish consensus on all the main issues. I am grateful to hon. Members for the individual tributes that they have paid to them in the course of our deliberations this afternoon—my team put that in my speech, no doubt expecting a drink at the end of this.

Finally, I thank my hon. Friend the Minister for Schools, who was responsible for managing the Bill in its earlier stages in this House. His open and consensual approach in Standing Committee has ensured that the Bill has the broad support of all parties, and I have tried to continue that approach.

Returning to our little debate earlier this afternoon, will the Minister give me some examples of construction works?

I am delighted that the hon. Gentleman has caught me, because I was about to sit down. We would not consider that the erection of a boundary fence cordoning off a development or the digging of a trench for foundations to be construction works. I have listened carefully to the hon. Gentleman’s points this afternoon and to his quotations from the guide that he alluded to earlier. The point is that construction—building—must be taking place. The erection of a fence, clearance works or digging exploratory boreholes would not be admissible. I know that he will not be pleased by our view, but I hope that I have at least clarified the situation.

We have improved the Bill during our deliberations, and I have no hesitation in commending it to the House.

I shall start by picking up the Minister’s comments to my hon. Friend the Member for North Shropshire (Mr. Paterson). We were unable to conclude the discussion in which the hon. Member for Sherwood (Paddy Tipping) discussed long-standing planning consents. We were not trying to allow someone with planning consent to circumvent the basic import of being able to apply to register a village green. The Minister has suggested that I was asking for a third concession, which was not the case. I was asking for a clarification of the word, “construction”, which the Minister has just provided for my hon. Friend the Member for North Shropshire—although as we all know, it will be for the courts to decide. It would be a shame if anybody who had begun a development—the moot point is what constitutes “beginning development”—finds that the opportunity is taken away from them.

This is an extremely important Bill. It is a great pleasure in many ways—I know that other Members find this—to deliberate on a matter without party division or point scoring. We had a little contretemps during the debate on the last group of amendments when it was suggested that my party was divided. That is not so; I merely wanted to ensure that the other side of the debate was properly aired because I knew what the Minister was going to say. There are two points of view, and it was right that they should both be put.

It is also unusual to debate a Bill dealing with legislation that is in many cases hundreds of years old. I think that the earliest piece of legislation that we mentioned dated from the 1270s. We have some ancient commons in my constituency, some with their own statute, and I have learned a great deal about that law. I hope that that will enable me to understand local problems better, if not to resolve them.

As the Minister said, his predecessor, who is now the Minister for Schools, led us through Second Reading and Committee in the extremely constructive way that those of us who have worked with him for some time have come to expect. I congratulate him on his promotion, which was well deserved. He was a good Minister at the Department for Environment, Food and Rural Affairs, and I hope that he takes that skill forward in his new role. The current Minister has carried on the style adopted by his predecessor and has been extremely helpful in discussions outside the Chamber, as well as in his responses today. I thank him for that.

I also thank the hon. Member for Brecon and Radnorshire (Mr. Williams), who has adopted an equally constructive approach, bringing his experience as a Welsh hill farmer to bear, and the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who brought to our debates his tremendous experience as a rural lawyer dealing with common law, among other things. He has contributed considerably. Many outside interests and organisations have put forward their thoughts and views, and were involved in the long discussions and consultations that the Government held prior to publishing the Bill.

It would be remiss of me not to say that one or two concerns remain, including on development and minor but necessary works. I look forward to the regulations that the Minister will publish as a result. I am sorry that it has not been possible for us to deal with incorrect registrations. We considered several options, including the concept of reintroducing the principle of levancy and couchancy. The Minister and I discussed that, and I accept that it would be difficult. However, it is a pity that we have not been able to find a solution to the glaring examples of people on the register who have rights that they should never have registered, but are difficult to shift.

Nevertheless, we have dramatically improved the common law of this land as it applies to commons. I hope that what we have done will prove durable and flexible for a very long time. I hope, too, that it will help not only landowners but owners of the ancient rights that we have discussed and owners of newer rights such as open access. The only group that I hope that it does not help are lawyers. I hope that we have created a Bill that is clear enough, so that the common man can understand it and the lawyer is the poorer for it. I wish it well.

It was a great pleasure and a fantastic learning opportunity to serve on the Standing Committee on the Commons Bill [Lords]. I hope that it will shortly be followed by the Lords Bill [Commons].

My constituency has 10,000 hectares of commons, the largest of which are Bowes moor, Cotherstone pasture, Barningham moor, Eggleston common, Cockfield fell and Hamsterley common. There are 39 commons in all. Among other things, it emerged from the discussion that half the commons in this country are sites of special scientific interest, which many people found surprising at first. As we considered the Bill in more detail, however, I realised that that was not an accident: the reason why commons are so environmentally important is that landowners have not historically had the same rights or financial incentives to sell or develop the land.

There is a general lesson for us, in all our work on protecting the environment, in the great value of taking collective responsibility. This Bill shows that it is important to continue managing commons in the interests of all stakeholders—landowners, tenant farmers and those with interests in sport and walking. In my constituency, that is especially important for the hill farmers and the environment, as part of it is an area of outstanding natural beauty. I especially welcome the democratisation process with the new commons councils being set up and the measures to protect village greens for shared use.

I want to say a brief word about part 3 of schedule 6. Before we repeal the Commons Act 1285, from the reign of Edward I, I want to share something with hon. Members about it. It is a very short piece of legislation—less than one column long—and begins:

“Whereas in a Statute made at Merton, it was granted that Lords of Wastes, Woods, and Pastures, might approve the said Wastes, Woods and Pastures, notwithstanding the Contradiction of their Tenants, so that the Tenants had sufficient Pasture to their Tenements with free…the same”.

It is interesting that the problems in 1285 were similar to those that we have been addressing. The Act goes on to say:

“If any do claim Common by special Feoffment or Grant for a certain Number of Beasts, or otherwise…he ought to have of common Right….By occasion of a Windmill, Sheepcote Deyry, inlarging of a Court necessary, or Courtelage, from henceforth no Man shall be grieved by Assise…And where sometime it chanceth that one having Right to approve, a Dyke or an Hedge, and some by Night…do overthrow the Hedge or Dyke, and it cannot be known by Verdict of the Assise or Jury, who did overthrow the Hedge or Dyke, and Men…will not indict such as be guilty of the Fact…shall be distrained to levy the Hedge or Dyke at their own Cost”.

We are often criticised in the House for producing too much hasty legislation, which we have not had time to consider properly. The 1285 Act, however, has had a good run. We know how it is operated, and we are in a position to repeal it as part of this Bill. I am very happy to support the Bill.

I, too, have been privileged to take part in the consideration of this legislation, the roots of which go back to feudal times. The wasteland of the manor has survived intact over a very long period, and given the diverse expectations of different people and different parts of the community about the common land, I am always amazed by the fact that people generally seem to get on well and ensure that it is managed to the best purpose. Obviously, some aspects needed improving, and the Bill will do that and ensure that such land exists for a long time into the future.

I, too, thank the hon. Members who participated on Second Reading and in Committee. The Bill is improved, and I thank the Bill team for their work and generosity in giving of their time and expertise to me and to other hon. Members.

Commons will face threats and challenges in the future. As we see more and more of our agricultural land used for energy production, and less available for food production, common land might have to meet challenges that have not been met in the recent past. That will be a test of the legislation. The changes in the common agricultural policy and the different ways in which rightholders use their rights will be very interesting. Now that all the support has gone from production and there is no direct pressure on farmers to graze as much stock as they did in the past, it is possible that biodiversity will vastly improve.

It would be wrong to refer only to commons and not to village greens, which are very important to our communities. They are green lands in the middle of our towns and cities. They are important not only environmentally, but as a community resource. It has been a privilege to work with everyone involved. I am sure that the Bill will stand the test of time, and I look forward to its implementation.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with amendments.


Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

International Development

That the draft African Development Fund (Multilateral Debt Relief Initiative) Order 2006, which was laid before this House on 25th May, be approved.—[Mr. Heppell.]

Question agreed to.

I shall put motions 3 and 4 together.

Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

Church of England (miscellaneous Provisions) Measure

That the Church of England (Miscellaneous Provisions) Measure, passed by the General Synod of the Church of England, be presented to Her Majesty for Her Royal Assent in the form in which the said Measure was laid before Parliament.

Pastoral (amendment) Measure

That the Pastoral (Amendment) Measure, passed by the General Synod of the Church of England, be presented to Her Majesty for Her Royal Assent in the form in which the said Measure was laid before Parliament.—[Sir Stuart Bell, on behalf of the Church Commissioners.]

Question agreed to.


Motion made, and Question put forthwith, pursuant to Standing Order No. 119(9) (European Standing Committees),

Strategy for Sustainable, Competitive and Secure Energy

That this House takes note of European Union Document No. 7070/06, European Commission Green Paper: A European Strategy for Sustainable, Competitive and Secure Energy; and endorses the Government’s approach of supporting the Green Paper’s strategy for a more cohesive European Energy Policy.—[Mr. Heppell.]

Question agreed to.