Commons Bill [Lords]

In our view, unless national authority consent is obtained, any person will be able to seek enforcement action against the maintenance or extension of unlawful old works. If the practical effect of the new work would be further to impede access, compared with the position before the new work was undertaken, the situation is as set out in the letter I wrote on 11 May to members of the Standing Committee. The letter is in the Library, but I might helpfully quote from it on maintenance of works:"““There appears to have been some confusion about this issue during debate so I thought it might be helpful to set our intentions as to whether consent under clause 38(1) will be required for maintenance to existing works. Works of any description will require consent only if they take place on the common, not if they stand on land adjoining the common, for example on neighbouring farmland. The physical boundaries separating the common for adjoining land, for example the wall between the common and the in-by or enclosed land, is customarily the responsibility of the occupier of that land and not part of the common.””" So, works of maintenance could not require consent. New works on the common will not require consent if they are merely maintaining original structures that are lawfully there, provided that maintenance does not create any greater practical impediment to access than the original structure. Examples might be structures that receive consent under section 194 of the Law of Property Act 1925 or those where such consent was never needed initially, perhaps because the original works were undertaken before 1926 or under statutory powers. If the original works were unlawful when originally constructed, the situation is a little more complicated. If they remain unlawful, nothing in the Bill will change that, and maintaining them will require consent as for any other works that restrict or impede access. Indeed, the original works themselves will continue to require consent. We have clarified the fact that the appropriate national authority will be able to entertain a retrospective application, and that is set out in clause 39(7). If the original works are no longer lawful because the time in which enforcement action could have been taken under the Limitation Act 1980 has expired, consent will be needed for maintaining them in the same way as it would be needed for other lawful works, if doing so creates any greater practical impediment to access than the original structure. Any new works that would increase the size or footprint of previous works and, thereby, the degree of impediment to access will always require consent, whether or not the original works had consent. This is because they are not works of maintenance, but works that themselves prevent or impede access. I hope that that is helpful and provides light at the end of the tunnel for my hon. Friend the Member for Sherwood. Notwithstanding the cut-off date referred to in amendment No. 121, access authorities have powers under chapter 3 of part 1 of the CROW Act to provide means of access on access land. That would provide a way in which access could be promoted, whatever the status and age of the fencing. My hon. Friend the Member for Sherwood asked what is, on the face of it, a very simple question—why did we change? I have not yet answered it. It has been evident today that the Government have changed a great deal since the Bill was introduced. On the whole, I believe that the changes have improved it. We have had to reflect on the balance of arguments presented to us both in Committee and in the other place. The consensus and compromise that we have sought to bring will enable us to achieve the intention that we all share—to improve the management of our common lands. That is what prompted us to change our views, so I ask my hon. Friend not to press his amendment.