Commons Bill [Lords]

The hon. Gentleman puts a question that is absolutely to the point, and the answer is yes, we do believe that clause 43 will give us the flexibility that we require. But in framing subsequent regulations, we will obviously take very careful note of the view expressed by the House this afternoon, and of the potential pitfalls to which we have been alerted. Government amendment No. 76 echoes a similar provision in clause 43(5). It enables an order to be made by the national authority, exempting certain land from the controls on works in clause 38. An order could be made under this amendment only in relation to land to which the controls on works under section 194 of the Law of Property Act 1925—the predecessor provision to clause 38—have already ceased to apply. So this amendment and the existing clause 43(5) merely give us the option to preserve the exemptions that are already in place, and we see that as entirely proper. Generally, section 194 of the 1925 Act applies to land that was subject to rights of common in 1926. Where all rights of common have since been acquired under any statutory power, such as a power of compulsory purchase, section 194 will cease to apply to that land. It is in those circumstances that we would have the discretion to make an order under this amendment. It will not surprise Members to learn that we have in mind a particular case: Warcop military training area, which is a firing range in Cumbria. The rights of common there were acquired in 2003 following a public inquiry, and the controls on works under section 194 therefore ceased to apply at the same time. There is uncertainty about Warcop’s status, and I share the concern of the Under-Secretary of State for Defence, my hon. Friend the Member for West Bromwich, East (Mr. Watson), that clause 38 could re-impose those controls. Government amendment No. 76 will enable us to address the issue at Warcop. My hon. Friend and I are committed to consulting at a later date—I give that commitment, as my hon. Friend the Member for Sherwood (Paddy Tipping) asked me to do—on how best to address the problem in the light of this amendment, so that there is no interference with the delivery of our armed forces’ training needs. It might help if I add that my Department is not aware of any other site where the circumstances would enable an order to be made using the powers conferred by this amendment. I turn now to Government amendments Nos. 78 to 80, which deal with the National Trust. The House will recall from earlier debates that the trust was concerned about the impact of the Bill on the National Trust Acts. I have since met Fiona Reynolds, the trust’s chief executive, and am pleased to say that we have been able to reassure the trust that the arrangements for improved management of commons set out in part 2 of the Bill do not represent any practical threat to its excellent management of its very extensive common land holdings. However, Fiona Reynolds has also pointed out that the power in clause 44(2) to amend local or personal legislation by order"““for the purpose of making provision about works””" may be too broad. The trust is concerned that it would allow such an order to repeal relevant powers taken by it under the National Trust Acts. Of course, that is not our intention, and the amendments that we consider necessary to those Acts are already set out in paragraphs 3 and 4 of schedule 4. Government amendment No. 78, which builds on an amendment proposed to us by the National Trust, addresses that matter. It makes it clear that the purpose of the power is simply to enable any existing consent criteria or procedures for works carried out under local or personal legislation to be made consistent with the criteria and procedures set out in part 3 of the Bill. The amendment does this for both the current subsections (2) and (4) of clause 44, and obviates the need for subsection (5). Government amendments Nos. 79 and 80 are consequential. As I understand it, the National Trust supports the generality of the Bill’s provisions, and the tabling of Government amendment No. 78 leaves it content that the Bill will not prejudice its interests. Amendment No. 121, tabled by my hon. Friend the Member for Sherwood, stems from an amendment that we made to the Bill on Third Reading in another place. That Government amendment concerned section 194 of the Law of Property Act 1925 which, as I have already said, is the current statutory provision about consent for works on commons. The Bill will repeal section 194 in due course, but paragraph 6 of schedule 4 makes transitional provision about enforcement under the section until it is repealed. Originally, paragraph 6 of schedule 4 provided for any person or organisation to seek enforcement action, in the county court, against works undertaken without authority under section 194 of the 1925 Act. Our amendment in the other place said, in effect, that that did not apply to works undertaken before the Bill was introduced into the House of Lords last June—hence the date. In such cases, the status quo would prevail: that is, that only the district, county or unitary council—in Wales, the county borough—the lord of the manor, the owner or others with a legal interest in the land should be able to seek an enforcement order from the county court. Amendment No. 121 would reverse that change, so that any person could seek enforcement, even against ““old”” works. We are committed to the principle that, if works are unlawfully undertaken on common land after the introduction of this Bill, anyone should be able to ask the court to take action. I think that that is common currency between me and my hon. Friend the Member for Sherwood. Everyone now has a direct interest in keeping commons open and unspoilt, thanks to the Government’s historic achievement in giving people legal access rights over commons throughout the country. So for the first time, the Bill extends the power to seek enforcement action against unlawful works to any person or organisation. My hon. Friend the Member for Sherwood has a distinguished record of personal interest in open space protection and public access, and I fully understand why he has proposed amendment No. 121, but it is about the past, not the future. The issue that it raises really boils down to this question: should any person or organisation be able to go to the court and ask it to enforce against unlawful works that were undertaken before the Bill even began its passage through another place? In practice, the question is not that simple. The Limitation Act 1980 rules out enforcement against works undertaken more than 12 years ago. Moreover, as I am sure my hon. Friend the Member for Sherwood is aware, the effective window for action tends in fact to be much narrower than that, because the courts look very critically at any suggestion that they should make any type of order against works that are more than a few years old. In reality, there is likely to be a limited number of cases in which the amendments would make a practical difference to the enforcement position. Our view is that where works were undertaken within the narrow time window and without consent it would not be right for us to open the scope for anyone to seek enforcement action. In the end, those responsible for such works did what they did on the basis of the more limited enforcement regime that then applied. Paragraph 6 as it stands strikes the right balance, and we do not think that it would be just to allow any person to apply to the county court for enforcement action in pre-Bill cases. The situation may, however, be different for future changes to unlawful old works. I hope that that gives my hon. Friend the Member for Sherwood a glimmer of hope.