Commons Bill [HL]

My Lords, Amendment No. 28 would require the transitional period for correcting mistakes in the registers under Schedule 1 to be concluded by 28 June 2015. Amendment No. 30 would require the registers to be reviewed and brought up to date in Schedule 2 by requiring that the transitional period be concluded by 28 June 2012. In between them comes Amendment No. 29, which agrees with the same date as Amendment No. 28, but talks about registration rather than rectification. The amendments address a very important issue around when the registers are deemed to be final. Having a finite time to correct errors and bring the registers up to date is a principle we agree on. We agree that once a cut-off date has been set, and once that date has passed, the registers should become final and conclusive. If that date is missed, it is too late. But before we embark on setting a date in stone for updating the registers, it is important to properly understand the complexities of the problem. Experience has shown that there are differing standards across England and Wales in the maintenance of registers since their inception in the late 1960s. In some areas, such as Powys, the local authority has expended considerable effort in doing what it can within the limits of the 1965 Act to update its registers. In other areas, it is frankly not so good. In 1986, some analysis was carried out by the Common Land Forum to measure the extent of the problem, but even back then the task was daunting and it came no closer to understanding the problem than we are now. So that we do not make the same mistakes made after the 1965 Act came into force, initial implementation will be carried out as a targeted pilot programme, as I said in Committee. We wish initially to focus on those areas where there are significant tracts of common land—for example, that might mean in Cumbria and Devon. We will learn from what works well and what does not, and then set about a phased implementation for the remaining registers. We do not know how long that will take, and imposing an artificial deadline is perhaps not the wisest course. I remind the House that we are talking about public money, and obviously the whole House will wish to spend that wisely. Having taken an initial look at the degree of problems facing registration authorities, we think that around three years for the transitional period to update the registers in each local authority is about right, but we are conscious that that may be too ambitious for those areas where the problems are greatest. If we seek to tackle all 156 authorities at once, we run a serious risk of getting it wrong. We wish to work with the Local Government Association and individual registration authorities to come to a mutually agreeable timetable for implementation—a timetable based on the real extent of the problem, and not some vast unknown. I am sure that the National Assembly will also wish to agree an implementation timetable with Welsh local authorities and the Welsh Local Government Association that is appropriate to Welsh conditions. The amendments may have unintended side effects. For example, setting a definitive date such as that proposed by Amendment No. 30 will mean that any outstanding application at 30 June 2012 will no longer be able to be considered, no matter how worthy. That is because Schedule 2 will cease to exist at that date and all outstanding applications will fail. I shall say a few additional words about Amendment No. 28. Schedule 1 differs from Schedule 2 in that applications will be made at the volition of applicants, rather than in response to a predetermined timetable imposed by regulations and the registration authority. Those will be applications to correct certain substantive mistakes in the registers, which have caused land to be missed out or wrongly included. Experience shows that people with an interest in such matters—they may, for example, be house owners not even yet aware that their garden has become registered as part of the village green—are slow to come forward. Many people missed a one-off opportunity to seek the deregistration of houses and dwellings under the time-limited Common Land (Rectification of Registers) Act 1989. We must make sure that this final opportunity to put things right is not overlooked in the same way. At present, the Bill gives us power to be flexible about the closing date for applications in any particular area, but Amendment No. 28 would impose an arbitrary deadline. It would mean, for example, that no further applications could be made after that date to add land to the register which was wrongly excluded in the 1965 Act, whatever the merits, because local people had not got round to making an application by that date. We have allowed 25 years, with a power to extend to 30 years, for making the definitive map of rights of way truly definitive under CROW, and it would be wrong and a bit short-sighted to impose a shorter deadline on Schedule 1. Amendment No. 29 seeks to ensure registration by the proposed cut-off date. Unfortunately, the arguments that I have tried to employ on Amendment No. 28 are appropriate, so Amendment No. 29 would be no more helpful. We do not expect a particularly long delay between application and determination, so we believe that the amendment would not make much difference. The noble Lord, Lord Greaves, asked why the RSPB is wrong with regard to commons associations. We believe that there is no reason why commons associations cannot be established before Part 1 commences. The noble Baroness, Lady Byford, spoke to Amendment No. 80. We think that the amendment would be relevant where, for example, application had been made during the transitional period to register a right of common which had been created but not registered since 1970, the authority had failed to determine the application and paragraph 3 had the effect of causing the right to be extinguished. But there are two reasons why we do not think that the amendment is necessary . First, the registration authority is under a duty to discharge its obligations under Part 1, including Schedule 2. If the registration authority fails to deal with an application, it is only right that the consequences of its failure might give rise to certain liabilities towards the person affected. We believe that it would be inappropriate for the authority to be absolved of liability so that a person suffering loss from such a mistake would have no redress. Secondly, paragraph 4 makes provision for regulations to enable the authority to make an amendment to the register after the close of the transitional period in consequence of a qualifying event. We envisage that regulations will require such an amendment only where it would be reasonable to give effect to it. So, if the amendment should have been made during the transitional period, a third party has relied on the fact that no amendment was made in time and a late amendment would cause real loss to the third party, then regulations may well provide that the amendment should not be made out of time. In principle, even if an amendment is overlooked during the transitional period, it may still be possible to deal with it later. That is why we do not think that it would be appropriate to protect a registration authority from the consequences of its failure to discharge its duty, and therefore, when we reach the amendment, we will ask the noble Baroness not to press it.