Commons Bill [HL]

The power in Clause 43 to take action is broad, giving an authority a wide discretion to act in response to an extensive range of threats. For example, an authority could act to exclude stock unlawfully grazing on a common or it could obtain a possession order to remove caravans drawn on to it. The authority could also act in the event of a very damaging incursion, such as a proposed rave—an example mentioned, I think, by the noble Lord, Lord Livsey. Alternatively, in theory the authority could also act against the most minor trifles, such as a lamb straying on to the common from nearby enclosed fields. The authority would have discretion on how to act. It might be able to abate a nuisance, for example, through rangers asking people who are picking wild plants to leave. Or it might take civil action against those who cause damage, perhaps seeking an injunction against any repetition, or it might bring a prosecution against the driver of a motor vehicle brought on to the common. Moreover, there is also a discretion as to which tier of a local authority may take such steps against unlawful interference. The amendment tabled by the noble Lord, Lord Greaves, would require all of these authorities to take unspecified action in all of these cases. I am sure that he appreciates how impractical that would be. Authorities would not be able to decide whether an unlawful interference warranted action in the public interest. They would have to take action, whether justified or not. Nor would it be clear on which authority would fall the duty to take enforcement action. In some areas, there would be confusion about the respective responsibilities of the parish, the district, the country and the national park authorities—a point raised clearly by the noble Lord, Livsey. That said, I can understand why the noble Lord, Lord Greaves, is raising these issues. He feels that too many authorities are failing to exercise these powers at all—that they turn a blind eye. It is a problem which we recognise. We have already touched on this issue in debate on amendments to Clause 39 in respect of enforcement against unlawful works, where I said that there is a role for local access forums to advise on the authorities’ use of their powers and their priorities in these matters. That role applies equally to Clause 43 where unlawful interference has an adverse impact on public recreation. The noble Lord’s amendment is really about the prioritisation of the protection of common land among local authorities’ many duties and powers. He fears, and many of us would share that fear, that management and protection of common land is not top of the local authorities’ agenda. He may be right. But this Bill, and in particular Part 1, is about reprioritising local authorities’ work in this field. We cannot expect to take these issues to the top of the local government agenda but we can try to reinvigorate their role here. We will need to look closely at how local authorities carry out this work as part of implementing the Bill. Some registration authorities already do an excellent job in this area, often with limited resources, and we commend those authorities which have developed electronic working copies of their registers, such as Powys County Council, so as to assist themselves and their customers in providing access to the registers. We will also wish to provide guidance to local authorities on the undertaking of their functions under this Bill and that will certainly include advice about the use of their powers under Clause 43. I am not aware that such advice has been provided in recent years and I hope that that will provide some reassurance to the noble Lord, Lord Greaves. The noble Lord, Lord Greaves, also raised the concern of the noble Lord, Lord Chorley, who raised a similar point to Amendment No. 235B at Second Reading. The Environment Act 1995 already provides for a national park authority to exercise the functions of a local authority under Clause 43. But this is a rather subtle way of making these powers available to national park authorities. If he will allow me to do so, I shall take the point away and consider whether we can deal with the matter more clearly, having regard to the points raised by his noble friend Lord Livsey. Amendment No. 235C relates to the functions of a conservation board for an area of outstanding natural beauty, which are conferred in an establishment order under the Countryside and Rights of Way Act. The establishment order may provide for any of the functions of a local authority to be transferred to, or exercised concurrently with, the conservation board. If the authorities participating in the establishment of a conservation board wish to ensure that the board may act under Clause 43, they simply need to ask for these powers to be conferred in the establishment order. That, for example, is the case with the conservation board for the Cotswolds. Amendments Nos. 235A and 235D would enable local authorities to apply to be registered as the proprietor of unclaimed common land. We have considered very carefully, in conjunction with the Land Registry, whether it would be possible to give local authorities additional and wider powers in this area by making provision in the Bill to vest ownership of unclaimed commons in the relevant local authority. However, it was not possible to identify an appropriate and practicable way of achieving this, given the nature of English land law. We believe that the real problem underlying unclaimed land is not that there is no known owner but that the lack of clarity about ownership can give rise to ineffective management. We therefore concluded that the problem could be tackled by enhancing the powers for management of unclaimed land and, in addition to Clause 43 and schemes of management under the Commons Act 1899, to give commons associations established under Part 2 the power to manage unclaimed commons. We believe that this will achieve the underlying objective that unclaimed commons are managed more effectively where improved management is called for. I therefore hope that the noble Lord will withdraw his amendment.