Commons Bill [HL]

Clause 36 essentially re-enacts the existing provisions contained in Section 194 of the Law of Property Act 1925. We have tried to strike the appropriate balance between controlling those works that prevent or impede access and continuing to enable works that do not do so and which, for example, are necessary for the effective management of the land—the noble Earl used those very words. In addition, we have taken new powers in Clause 41 to clarify the types of works covered by the controls, which we believe are in everyone’s interest, and will provide an additional safeguard to ensure that minor or temporary works necessary to manage the land properly will not fall within the Clause 36 controls. Furthermore, in cases where the works are not exempt, we are taking wider powers to prescribe the procedures to be followed when making an application for consent. We want to avoid the procedures acting as a disincentive to making an application. Let me try to deal with the amendments to which noble Lords have spoken. We do not believe that the change suggested in Amendments Nos. 193 and 223 would be sensible. Given the small number of applications each year, a proposal to spread those out over some 170 local authorities would have serious implications for cost, expertise and consistency. We concluded in the 2002 policy statement, in the light of responses to the 2000 consultation, that that proposal should not be pursued and have seen no evidence to suggest that the conclusion should be reviewed. Nor have we heard any significant dissent from that conclusion since the policy statement was published. We therefore think that the amendment should be withdrawn. Amendment No. 196 provides that only works that ““materially”” prevent or impede access would be covered. The amendment would do nothing to introduce more clarity into the type of works covered by the controls. In our view the amendment would do nothing to introduce more clarity into the type of works covered by the controls. The approach we have adopted, to put into the Bill a list of the major types of work which are likely to prevent or impede access, is the best way forward. Where such works do not prevent or impede access they are not covered by the controls. Where they do, but are minor or temporary, we have taken powers to be able to exempt them from the controls. The amendment would perhaps increase rather than decrease uncertainty about the scope of Clause 36. One would need to decide whether works were likely materially to prevent or impede access. No doubt the courts would be asked to rule on what ““materially”” actually means. The present construction of the clause is almost identical to the current provision made in Section 194(1) of the Law of Property Act 1925. It does not give rise to uncertainty among landowners because they will not know whether works are likely to impede access. How much more difficult would it be to decide not only whether access is prevented or impeded, but also whether that was a material effect: material to whom? Bollards at a point of entry to a common might have very little material impact on walkers and riders, but a very material impact on others. A low line of railings would impact on the disabled, but possibly not on others. It is proper for all these interests to be taken into account, which is what the present construction of the clause achieves. It has been suggested that trivial works will require consent under Clause 36. I have heard suggestions about drainage ditches and shooting butts. If so, that is a requirement of the existing Section 194 as it stands, and there is not much complaint about that. We are told that the county courts will be besieged by litigants hoping to take action against such structures. Those litigants would have to prove to the court that the works do prevent or impede access. The courts are quite capable of imposing their own tests in sifting out cases which waste time and are frivolous, whether by refusing the order sought or failing to award costs to the successful applicant. The noble Earl, Lord Peel, asked about Larsen traps and other items of that sort. Clause 36 contains essentially the same controls as now. So if such items do not need consent now, they will not do so under the clause. The word ““impede”” has itself been in use since the 1925 Act and probably does not need further definition. The noble Earl was also concerned about frivolous and unnecessary enforcement. I have already said something about that. We do not believe that the amendments to the enforcement provision will lead to unnecessary enforcement action being taken. We believe that having a consistent consent regime once this Bill is enacted is the right way to proceed. I have already made my point about frivolous actions being dismissed by the courts. Amendment No. 198 seeks to clarify that works for the maintenance of structures in situ should not be covered by the controls. We do not think that the amendment is necessary. The provisions relating to works would not cover maintenance works which do not prevent or impede access. So where works have lawfully been constructed on common land, any works carried out only to maintain them would not need consent unless the terms of the original consent were contravened in some way. Where resurfacing works are concerned, there is already a provision in Clause 36(4) to exclude from the need for consent any works to repair an existing surface where the same materials are used. The noble Baroness, Lady Byford, asked whether the national authority would be bound by timetables on planning permissions. The answer to her question is no, it would not. We propose to bring forward regulations to enable us to streamline the Clause 36 application process and are determined to ensure that it does not lead to people avoiding those controls. However, firm timetables are difficult to impose, given the nature of the process and the need to consult widely on the proposed works. She also mentioned costs. I cannot give a precise figure. Costs can be high if a public inquiry is held under the present system or an applicant hires legal support, which is not unknown, of course. But most applications will be dealt with by written representations at low cost, particularly where the impact of the works is slight. The noble Baroness went on to suggest that these are traditionally matters for local control, but there has been no tradition of local control over works on common land. Powers of consent are always vested in the Secretary of State, in England at least, and consent to enclosure improvement or the compulsory purchase of common land has always been held by central rather than local government. I turn to Amendment No. 194, spoken to by the noble Lord, Lord Livsey. The amendment is unnecessary. The arrangements followed as part of the current application process should ensure that holders of common rights are consulted by the applicant and can make representations to the Secretary of State about the application. We intend to follow essentially the same process as that under the current arrangements for applications under our new Clause 36, and we have powers to provide for this under Clause 38. We think it most unlikely that commoners or their association would not be consulted and we see no need to make it a statutory requirement. Amendment No. 195 has been tabled in the name of the noble Lord, Lord Greaves. This amendment has the potential significantly to extend the area of land covered by Clause 36 controls. Of course we understand the intention behind the noble Lord’s amendment, which seeks to ensure and maintain public access to common land. However, we do not see how the proposal could be workable. One of our objectives is to bring greater clarity into the land covered by the controls. This proposal would defeat that objective because it would not be possible to know what ““adjacent”” land was covered. How far would ““adjacent”” land extend? It would impose new controls over works on significant areas of land which are not common land, and I do not think we could justify that. Two further amendments in this group, Amendments Nos. 200 and 200A, have been tabled by the noble Lord, Lord Greaves, but I am not sure whether he has spoken to them.