Commons Bill [HL]

My Lords, perhaps I may take a little time to question the Minister further on Amendment No. 104, which deals with the repeal of Section 68. I have been contacted about this over the weekend and I shall try to explain in simple language—it is a very complex matter—where I think we stand. I am sure that noble Lords will be aware that we spent a great deal of time debating Section 68 of CROW in 2000, when the issue was brought up late in the proceedings in your Lordships’ House and was included in the Bill. Section 68 provided for regulations to be passed to deal with the practical problems created by the judgment in the Hanning case. In effect, Section 68 gave householders the option to pay a fee for a statutory easement to the owner of the common land so that they would be legally entitled to a right of way to their home. If they did not pay the fee, they would not be granted the easement. This position was consistently government policy between at least 2000 and 2002. On 11 October 2000, the noble Lord, Lord McIntosh of Haringey, stated that the Government had, "““been at pains to point out that it would not be right for the property owner to pay nothing to secure an undoubtedly valuable right””.—[Official Report, 11/10/00; col. 432.]" On 1 July 2002, the then Minister, the noble Lord, Lord Whitty, stated: "““It has therefore always been our intention that landowners should receive some compensation in return for rights coming into existence by statute over their land””.—[Official Report, 1/7/02; col. 75.]" However, since the enactment of CROW, the judgment of Bakewell Management Limited v Brandwood and others has driven a coach and horses through the policy expressed in Section 68. It has been brought to my attention that in the Bakewell case a judicial committee of the House of Lords may have approached the issue without due regard to the policy expressed in Section 68. The policy expressed in CROW clearly stated, as I have just quoted, that a criminal driving over a common was never to be rewarded by free easement. Therefore, as I understand it, our problem is rather one of the cart going before the horse. So rather than setting itself the task of judgment based on government policy, the committee in Bakewell asked itself whether 20 years’ criminal driving should be rewarded by nothing at all, as in Hanning, or be a free easement. It has been suggested to me that it should have asked itself, given the Government’s policy, as agreed in Parliament, that 20 years’ criminal driving over a common is never to be rewarded by a free easement, whether it is open to the courts to effect a judicial repeal of that and hold that it is always to be rewarded by free easement. I accept that this is a very complex issue. I have struggled with it over the weekend and should like to go a little further. I understand that the Judicial Committee of your Lordships' House has held that landowners who have driven criminally over the common for at least 20 years are entitled to a free easement in common law. Are those who have paid for the easements under the statutory provision in Section 68 and the 2002 regulations now entitled to a refund from the owner of that common? That could be a private individual or a charity. Where does that leave them? If Section 68 is repealed, as we are suggesting, will those who have paid for an easement be entitled to a refund? What effect will that have on those who received payment and spent some or all of it in good faith? This stands to affect commons across the country, notably the Horsell common near Woking, which is vested in charity trustees. Finally, it has come to my attention that the respondents to the consultation document to which the Minister referred had been given an assurance that his representations regarding these issues within Section 68 would be considered by parliamentary counsel. Yet in subsequent responses from Defra, there has been no confirmation that these representations were passed on to parliamentary counsel. That could have saved noble Lords much time this afternoon. I am looking to the Minister for clarification. If he is not able to provide it, because we are at the end of the Bill, perhaps he could write to me.