Commons Bill [HL]

I am not sure that we want to go into that debate in too much detail in the Grand Committee. However, I support the comments of my noble friend. I have two amendments in the group—Amendments Nos. 55 and 58—but, before speaking to them, I should say that I welcome the amendments tabled by the noble Baroness, Lady Byford. I do not agree with them all, but she has done the Committee a favour by drawing out the issues so that they can be discussed. As to whether it should be a ““significant number”” or a ““majority”” of people in a locality, as we will see with the next group of amendments, defining a ““locality”” is difficult enough without having to produce a mechanism for finding a majority of people in that locality. So, regardless of the principle of the matter, with which I have some problems anyway, in practice the noble Baroness’s amendments might be difficult to carry out. Amendment No. 55 would increase the opportunities for applicants to register land as a green. The Bill requires use for lawful sports and pastimes to continue for such periods as may be defined in regulations. When the law was amended by Section 98 of the CROW Act—which I remember with affection from five years ago—the Government indicated that they would introduce regulations to cover it, but to date they have not done so. They now never will because they are repealing Section 98 in favour of what is contained in the new Bill. As the noble Baroness, Lady Byford, said, there has been a recent Court of Appeal judgment on the registration of a green at Trap Grounds in Oxford that has left this part of the law in a certain degree of turmoil. The judges ruled that the words ““continue to do so”” in the CROW Act amendments to the 1965 Act meant that the use for lawful sports and pastimes must continue right up to the date of the registration of the land. That clearly provides the owners of land with the opportunity of stopping those uses in the mean time and therefore being able to argue that there is no use as of right at the time the decision is being made. That is clearly a problem, and the Government’s proposals go some way towards tackling it by making the date when you have to show that such uses are taking place the date of the application. Amendment No. 55 suggests that it should be earlier than that—two years before the relevant provision of the CROW Act came into effect. I should like to hear the views of the Minister on that. Amendment No. 58 relates to the question of whether the qualifying period in which lawful sports and pastimes have taken place should be continuous. The noble Baroness, Lady Byford, has tabled an amendment which states that it should be continuous. I understand the reasons for that. This amendment says that it should not have to be continuous when the gaps in the use are due to statutory provisions whereby people are banned by law from taking part in their sports and pastimes, as, for example, with closure of land under the foot and mouth legislation, the obvious recent example. There is a precedent. Section 16 of the 1965 Act, relating to claims of prescriptive rights to common, states that where, during a period a right of common claimed over any land was not exercised, where the right claimed is a right to graze animals, the right could not be or was not exercised for reasons of animal health. That is exactly the type of provision that we suggest here. There might be a range of reasons why a piece of land has to be closed for a temporary period, when people cannot carry out their lawful sports and pastimes on it. It would, therefore, seem sensible to state that the qualifying period should not include a time when people could not do that, because those sports and pastimes would be against the law. I should like to hear the views of the Government.