Commons Bill [Lords]

New clause 2 would impose a general requirement on the owners of land adjacent to a common to fence against the common, which is to maintain an effective boundary to prevent stock from straying from the common on to their own land. Let me begin by saying that I have a good deal of sympathy with the objectives of the new clause. A worthwhile issue has been raised and I am happy to respond to the points that have been made. In our view, the new clause is not far from representing the existing position in common law. I believe that the hon. Member for Brecon and Radnorshire (Mr. Williams) was alluding to Egerton v. Harding, a case in the Court of Appeal in 1974, in which it was found that it was perfectly proper that a customary right to fence may exist. It is perfectly probable that on most commons in England and Wales, there is a customary law for adjoining property owners to fence against the common. Customary law is the custom of a locality that has existed since time immemorial. The courts will enforce such law, if it can be proven. Typically in such a case, several elderly farmers would be brought before the court to testify that they and their forebears had always considered it to be the practice to fence against the common. Indeed, nearly all our upland commons are surrounded by stone walls, some of which are of a considerable vintage, that have long been maintained by the owners of the adjoining land. Of course, the hon. Gentleman would say that it can be expensive to prove the custom in court and that few people might be likely to take up the challenge. I acknowledge, too, as he suggested, that in recent years, some landowners, especially the owners of land that is no longer in agricultural use, tend to presume the contrary view and believe that it is the responsibility of commoners to stop their stock from straying off the common and on to adjacent land. That can sometimes give rise to ill-feeling in local communities when sheep get into householders’ gardens. Such problems are especially acute in parts of south Wales and the valleys where the adjoining land is, or was, in industrial use and the old customs are difficult to enforce. With specific and, I hope, non-party political reference to the comments made about Blaenau Gwent, I understand that there appears to be a problem there. As I understand it, that partly relates to a minority of farmers allowing fences to deteriorate where there is a question over the ownership or responsibility for the fencing. There is also the matter of the fencing being cut by illegal motor cyclists who are trying to get access to open spaces. There is a lack of clarity about the extent to which off-roaders and farmers are therefore responsible for straying animals. Blaenau Gwent is dealing with stray sheep and, I think, horses, by impounding them, identifying them and contacting owners to collect them. The council is not legally obliged to do this, and it is a financial burden. With this in mind the council is proposing a byelaw to deal with straying sheep. I understand that no definite measures have been decided upon to date. Nor are we clear what powers would be used to make the byelaw or, indeed, whether it would be ultra vires. It often happens that people move into a rural community. They are unaware of customs and traditions and take objection when they wake up in the morning and find local sheep grazing at their front door. They naturally assume that the farmer must be at fault. On most commons, it is not the farmer who is responsible for fencing against strays. Responsibility lies with the householder. As I have indicated, I have considerable sympathy with the purpose of the amendment. The difficulty is that while customs are believed to be widespread and perhaps commonplace, it cannot be assumed that they are universal. The new clause, if accepted and implemented, would be unfair in relation to common land where there is no such custom. We have no way of distinguishing where the custom applies and where it does not. That is not our role: it is the role of the courts.