Commons Bill [HL]

I thank the noble Lord, Lord Williams of Elvel, for explaining his amendments, which we support. I also wonder, regarding priority, whether the Minister would cast his mind over how the CROW Act, for example, will override this Bill. We will deal with this matter in later amendments, but it is relevant to the point that the noble Lord, Lord Williams, has just raised. I have cherry-picked amendments which cover similarly unclear areas in the Bill: the processes of making application for common land, in Clause 15; the functioning of the commons association itself, in Clause 30; and the consent to carry out work on the land, in Clause 37. All of those come under the remit of satisfying both a so-called ““public interest”” and the ““interests of the neighbourhood””, to which the noble Lord, Lord Williams, referred. My amendments focus on those definitions which cover the same ground. What do the Government mean by ““public interest”” and ““interests of the neighbourhood””? Are they already covered by former legislation? That would solve the noble Lord’s problem. Surely, such terms are not distinct from each other. Surely, all neighbourhoods around the country are also part of the ““public””, although not all the public are lucky enough to be part of a particular neighbourhood. Will the Minister clarify the definitions? Otherwise, I fear that the Bill will run the risk of becoming vulnerable to an overly subjective use, which will be a carte blanche for the mysterious secondary instruments, whenever they are laid. I am also intrigued to discover what the Government mean by ““any other matter”” that is considered to be relevant. Can the Government provide an example of what that might entail, or are we to assume that any matter at all can be deemed to be relevant, and that that relevance will override the scrutinised legislation? Clause 30(6) informs that:"““A commons association must discharge its functions . . . having regard to . . . the public interest””." Does that mean that if a number of members of the public, perhaps, with regard to Clause 14, a ““significant number””, apply enough significant pressure to a commons association, that the protection and promotion of sustainable agriculture—the commons association’s functions—will cease? Will that be over and above rights that are held by commoners or individual landowners, unless the remit of the commons association provides such power? We are in a very muddy area. Finally, the ““public interest”” seems to be distinct from the ““interests of the neighbourhood”” in terms of the work being carried out. I hope that the Minister will shed some light on those definitions in and of themselves. For now, like other noble Lords, I cannot help but wonder whether, in the light of the distinction between the two, the public interest might supersede the interests of the neighbourhood or vice-versa. Perhaps a dual carriageway built across common land might be in the interests of the public, but would override the interests of the neighbourhood. The terms and exchanges of severances would be in the hands not of the public or the neighbourhood, but of the centralised government bodies and the commons associations. This section of the Bill is very confusing. I turn now to Amendment No. 70, which leaves out paragraph (c). It closely follows that to page 7 concerning the relative area of release and replacement land. The Minister answered some of those points. I raise the subject of public footpaths. In any gathering of farmers, some will tell you tales of years of effort and expense to remove a pass from the centre of a farmyard to the edge of a field or to 100 feet away. Frequently, the main stumbling block has been the need to persuade one or two people that such a move will not deprive them of their basic rights. We are anxious that the new legislation affecting the business of exchanging one access area with another is not hampered by an undue emphasis on protection of existing rights. Are some city access departments planning to apply for village green status in inner-city areas? If so, is the Minister certain that such moves will not be constrained by that paragraph? It may seem strange, but they are linked, so I now move to Clause 15 stand part and apologise to the Minister that I am doing so before his response. Our amendment would remove Clause 15. I have tabled it in response to concern expressed to me that the changes to deregistration and exchange applications imposed by the clause could render the whole process extinct. I should like to give the Minister an opportunity to come back to me on the issue. As I understand it, the exchange procedure is recognised as a useful mechanism that enables an existing piece of registered common land, town green or village green to be deregistered and swapped for another piece of land that is then registered in its place, subject to certain criteria. However, that is usually done to facilitate a landowner’s personal requirements. For instance, it may be to enable an extension to be built to an existing property or farm buildings to be erected in a more convenient position. Alternatively, it may be to enable new housing to take place in an appropriate position. The problem is that the clause proposes to introduce an even stricter test of whether such an exchange can take place, which could effectively straitjacket the process. Clause 15(6) and (7), as we have discussed, requires the Secretary of State or the National Assembly for Wales to take into account all nature conservation factors in the interests of the neighbourhood and the public interest before permitting such an exchange of land. Will the Minister confirm that, realistically, it will prove practically impossible to satisfy all such requirements so as to enable an exchange of land to take place? That would be much regretted. Meanwhile, the present arrangement provides an element of useful and sensible fluidity that is likely to be lost if the proposal stands part of the Bill.