Commons Bill [HL]

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 80 to 85. I shall speak also Amendments Nos. 87 to 89, 95 and 96, 102 and 103. On Amendments Nos. 80 to 84, normally, under Clause 38, proposed works that would impede access to or over common land need the prior consent of the national authority. Such works may for example include fencing, building, surfacing or earthworks. Subsection (6)(a) and (b) automatically exempt a particular type of works from that requirement. Amendments Nos. 80 and 81 emphasise that to be exempt in this way, works must be carried out under a power conferred by or under an enactment—for example, those undertaken by a statutory board of conservators. It was never intended that works achieve such exemption if they are carried out under a landowner’s ordinary powers at common law, just because they happen also to require statutory authority in particular circumstances—such as listed building consent or planning consent. The amendments make that position clear. Amendment No. 83 is consequential. Amendment No. 82 relates to commons management schemes made under the Metropolitan Commons Act 1866 or the Commons Act 1899. Those schemes allow conservators or district councils to manage commons for public benefit. The amendment makes clear that works under such schemes are exempt from Part 3 consent only if the scheme does not require anyone’s approval for the works. Amendment No. 84 is a technical amendment. Amendment No. 85 relates to Clause 39(3), which allows the national authority to consent to a works proposal with modifications or conditions. That is an important step forward, because in the past it has sometimes proved necessary for applicants to reapply to get an application into an acceptable form. Where the national authority imposes such modifications or conditions, subsection (5) as drafted would only have let the person to whom the consent is given apply to vary or revoke the modification or condition. Amendment No. 85 is a technical amendment to make sure that whoever is carrying out or proposing to carry out works for which a consent has been given will be eligible to apply in that way, even if they are not the person to whom the consent was given. This might arise, for example, where the land changes hands after consent is applied for, or just after it is given. Amendments Nos. 87 to 89 deal with the contravention of the controls on works in Clause 38, which opens the way to enforcement action through a county court. Under Clause 41(2), county courts will have the discretion to make an order, which they will exercise, as now, according to how serious the consequences of the contravention may be. The county courts may order the removal of the unlawful works and the restoration of the land to its former condition. Where consent was given but the works did not comply with it, the county courts may order compliance with the terms of the consent. The amendments are technical and ensure that any enforcement order can require action by the most appropriate person. Amendments Nos. 95 and 96 reflect similar provisions in Clause 43(5), and enable an order to be made by the national authority exempting certain land from the controls on works in Clause 38. In making the amendments, we have in mind the Warcop military training area in Cumbria. The controls on works there ceased to apply when the rights of common were acquired in 2003 following a public inquiry. I confirm that the Government will consult in due course on how best to maintain the status quo so that there is no interference with the delivery of our armed forces’ training needs. We are not aware of any other site where the circumstances would enable an order to be made using the powers conferred by the amendments. On Amendments Nos. 102 and 133, Section 31 of the Commons Act 1876 requires anyone intending to enclose or approve part of a common to publish that intention in a prescribed way at least three months before so that commoners or others can object. This protection was superseded by Section 194 of the Law of Property Act 1925. Any action that would be sufficient to constitute an enclosure or approval would certainly impede the commoners’ access over the land in question, and would therefore require consent from the Secretary of State under Section 194. We know of no case where the action required by Section 31 of the 1876 Act has been taken. Equally, when Part 3 replaces Section 194, it will require consent for works that impede the access of commoners or indeed anyone else over the land. That is why we are repealing these three measures. Moved, That the House do agree with the Commons in their Amendments Nos. 80 to 85.