Commons Bill [HL]

moved Amendment No. 46:"Page 21, line 29, after first ““or”” insert ““materially””" The noble Baroness said: My Lords, in moving Amendment No. 46, I shall speak also to Amendments Nos. 47 and 48 in the group. It is important that Part 3, particularly Clause 38, is tightly and correctly drawn so that it benefits everyone; whether they are people who want to access and to use the countryside as they do now or more than before or those who have to cope with land management of the commons. In Committee we had a lengthy debate about works on common land. My noble friend Lord Peel and the noble Lords, Lord Livsey and Lord Greaves, recognised the need for clarification in this part of the Bill. The Minister stated that the Government had tried to strike a balance, although he dismissed inserting the word ““materially”” out of hand. He did not care for it. In the mean time, I hope that he has thought more about it. I think that my trouble is that perhaps I am becoming too reasonable in this day and age, but there we are. In the light of what I shall say, I want the Government to consider inserting the word ““materially”” again because it is enormously important. In Grand Committee the Minister said:"““The present construction of the clause is almost identical to the current provision made in Section 194(1) of the Law of Property Act 1925.—[Official Report, 14/11/05; col. GC 247.]" I do not doubt that—I am sure that is correct—but one must remember that in 1925 there was no right of access, which obviously has now kicked into action following the CROW Act 2005. I should like to thank the Minister for his follow-up letter dated 24 November, but he did not refer to the creation of the CROW Act. As I have raised the matter again today, and it was not resolved in his letter, will the Minister consider again the reasons why I am putting these amendments forward? They are important and need to be determined. They operate together to try to bring a de minimus effect into the provisions of Clause 38, Prohibition on works without consent. The object is to restrict the definition of restricted works which materially impede access. To make that more acceptable and workable, we have created a new category for fencing by introducing it in Clause 38(2)(c) so that it is separated from works which prevent or impede access so as to create, in effect, an absolute prohibition and to take away the argument that it would be difficult to find whether fencing in practice impedes access in a particular case. The argument that the noble Lord made when he dealt with these provisions was that the wording simply reflected the provisions in the old law, which is why I raise this again. In Committee, my noble friend Lord Peel spoke of the need for fencing and ditching, and the construction of ponds and grouse butts—I could think of many other ideas—which may slightly impede, but technically do not impede, access in the way that some people might view this part of the Bill. We are trying to ensure that moors, particularly grouse moors, and, in general terms, whole commons, can be managed properly and successfully. We seek to minimise any potential acrimony which might be raised if this provision is not correct between those who access land as users, for whatever reason, and land managers. I beg to move.