Commons Bill [HL]

We have had an interesting debate around these amendments. In due course, I shall speak to government Amendment No. 71. Indeed, I shall do so at the start because, appropriately, it is grouped with the other amendments. Amendment No. 71 seeks to add a further example to Clause 15(7), about which we have heard quite a lot today. That subsection lists some of the issues included under the public interest criteria and we believe that they should include the protection of archaeological remains and features of historic interest. The list, about which I shall say more in a moment, is not intended to be exhaustive, but a better balance is brought to it by including the words,"““the protection of archaeological remains and features of historic interest””." That also makes the test consistent with the definition of ““public interest”” in Clause 37(2), which will apply when applications to carry out works are determined under Clause 36. I shall move Amendment No. 71 in due course. I turn to the amendments that have been moved and spoken to. They propose changes to the issues that the national authority—that is, the Secretary of State in England and the National Assembly in Wales—must consider in determining a deregistration and exchange application under Clause 15. I will deal first with Amendments Nos. 64 and 68 in the name of my noble friend Lord Williams of Elvel. I say to him straight away that his fast ball or bouncer—whatever he likes to call it—concerning, in effect, devolution will be answered in due course. He was kind enough to say that that does not have to happen today; nor will it. However, it is an important issue which needs a serious answer. I know that, in a sense, all these amendments are probing amendments on Clause 15 and the meaning of the clause. Amendments Nos. 64 and 68 would remove the requirement for the national authority to consider the interests of the neighbourhood, the public interest and any other factor considered to be relevant. If accepted, they would mean that the national authority would have to consider only the interests of owners, occupiers or common rights holders when considering an application for a deregistration and exchange order. In our view, common land and town and village greens play significant yet different roles for a wide range of people, and are valued for a variety of reasons. We believe that, in determining an application under Clause 15, the national authority’s focus should be on the effect of the application on the common or green itself and on all those with an interest in the land, rather than on one particular set of interests. That is why we have deliberately designed the Bill to enable the national authority to take account of all the various interests that might be affected by an application. Of course, they include the interests the owners of the land involved and also of those holding common rights, together with the interests of the neighbourhood and the wider public interest. I shall deal with common rights holders when I respond to Amendments Nos. 63 and 69 tabled by the noble Lord, Lord Livsey. Looking at Amendment No. 64 in more detail, however, it can reasonably be assumed that an application will invariably be in the landowner’s interests, as he will be the applicant. In cases where the same person owns both the release and the replacement land and the land is not subject to rights of common, we do not believe that it would be appropriate for the national authority to have regard only to the landowner’s interests. We consider that the requirement for the national authority to consider other factors provides a necessary level of protection. My noble friend Lord Williams asked about the order of priority in Clause 15(7). He may be disappointed with my answer: there is no order of priority. They are all factors to be taken into consideration by the Secretary of State or the Assembly. The expression ““interests of the neighbourhood”” can be defined as meaning the interests of people living on or occupying land close enough to a common to be directly affected by what happens to it. I turn to the amendments in the name of the noble Baroness, Lady Byford—I have not forgotten the noble Lord, Lord Livsey. The noble Baroness’s Amendments Nos. 65 and 66 would remove the requirement for the national authority to consider the public interest and any other factor considered to be relevant. The noble Baroness will not be surprised to hear that, if the amendments were pressed, I would resist them on the same grounds as I resisted the amendments in the name of my noble friend Lord Williams. The effect of Amendments Nos. 65 and 66 would be to limit the issues that the national authority could take into account when determining a deregistration and exchange application. We do not consider it appropriate that the national authority should be constrained in that way. In particular, we believe it is right that the public interest must be one of the factors to be considered because of the wider importance of common land and village greens to the public in general. We also believe that Clause 15(6)(d)—that is, any other matter considered to be relevant—serves a useful purpose in allowing the national authority to consider any other factor that it considers relevant. It is impossible to forecast what issues may be raised in individual applications, so we believe that in this instance this catch-all provision is very necessary. After all, it is the Secretary of State or the Assembly in Wales that will decide these issues in each case. Amendment No. 70, also in the name of the noble Baroness, would remove the requirement to have regard to the protection of public rights of access to any area of land. We resist this amendment because the public have a legal right of access, on foot, to practically all registered common land, with the exclusion of excepted land and some military training areas. Town and village greens are also areas to which local inhabitants have access for lawful sports and pastimes. We therefore believe that where the national authority is considering a proposal to deregister an area of land and offer replacement land in its place, the effect of the proposal on any public right of access is a material and very proper consideration. If, for whatever reason, there is no right of access to the release land, that is also a factor, on the other side, that the national authority can take into account. The noble Baroness, Lady Byford, asked me about the meaning of the expression ““public interest””. The phrase signifies the matters of the type that are set out in Clause 15 (7), such as nature conservation, which matter to the public in general. We think it right to refer in subsection (6) to both public interest and interest of the neighbourhood to emphasise that the national authority that will consider those matters must particularly consider the interests of local people, as well as broader considerations. The noble Lord, Lord Livsey, spoke to Amendments Nos. 63 and 69, which would require the national authority to give primacy to the interests of the common rights holders in considering any application. We accept that the interests of those rights holders are important, and Clause 15(6)(a) requires the national authority to have particular regard to the interests of those exercising right of common; but we do not believe that those interests should be given primacy irrespective of all other factors. Commoners’ interests are important, but common land has received special protection in our statute book for nearly 150 years because of its value to the public as a whole. It would not be right to assume that the commoners’ interests are paramount in any particular application. Indeed, on a common where rights are no longer exercised it would be odd or peculiar to suggest that those who hold but no longer exercise their rights are to be given special consideration or primacy. I believe that that argument holds water. The noble Lord, Lord Livsey, asked about exchanges causing sheep enterprises to become uneconomic. Most exchanges, if not almost all, have proved to be of small areas of land. We believe that exchanges of land affecting very large or large areas sufficient to threaten the farmers’ occupation will be rare, and the clause already ensures that that would be a very serious matter for the national authority to take into account in making its decision. The noble Baroness and the noble Earl, Lord Peel, asked me if the measure will make exchange more difficult. An applicant for exchange will not necessarily have to show that it is in the interests of all classes of people in subsection (6). They may conflict with one another; for example, if a proposed exchange has a major benefit to a landowner and only very minor disadvantages to the neighbourhood or public interest, the application may well succeed. We do not accept that applications will become extinct or less likely to succeed, but to get the right balance—which, after all, is what is needed for a proper decision to be made—the Secretary of State should consider all relevant matters in considering an application. That is what subsection (6) does, in order to give protection all round. I hope that I have answered all the questions.