Commons Bill [HL]

My Lords, I wholeheartedly support my noble friend’s amendments and I shall address my brief remarks principally to Amendment No. 46. The amendment is more than desirable if this part of the Bill is not to result in potential acrimony and confusion. As I said in Committee, common land is no different from any other type of land in that it requires positive management in order to achieve its objectives, whatever they may be. They could be agricultural, for sporting purposes or for nature conservation. More often than not the three are rather effectively intertwined. I would not like to speak for Wales but we should remember that most commons in England have been designated as sites of special scientific interest and are therefore subject to management plans agreed with English Nature as it is now, and Natural England as it is to become. As my noble friend Lady Byford has pointed out, essential management activities inevitably result in some disruption to the land. The construction of grouse butts or scrapes on Dartmoor common for the benefit of green plover, the opening of ditches and the maintenance of watercourses are relatively trivial issues, but if we are to avoid vexatious and expensive cases being brought against those responsible for carrying out such management tasks, in my view a sense of proportion must be brought into the equation. The Government argue that the restrictions imposed simply reflect the provisions set out in Section 124 of the Law of Property Act 1925, but my noble friend Lady Byford was quite right to point out that in those days we were talking about grazing animals. Now we have a completely different situation. The right to roam is in place under the CROW Act so that these activities may now affect people. Imposing restrictions on people’s access could be looked at very differently from the imposition of restrictions on a grazier to implement his rights of pasture on a common. I appreciate that the word ““materially”” does not in itself lead to a clear and explicit definition, but to ““impede”” something is an absolute term. Even if the works are of a truly trivial nature, as I have tried to describe to noble Lords, they could still technically interfere with a person’s right to exercise his access. There must be room in the Bill to introduce a degree of common sense. This amendment would provide a sensible solution that would allow the courts to maintain some proportion in this area. I turn briefly to Amendments Nos. 47 and 48. I can see the good intentions behind them. They would elevate fencing into the category of restricted works in recognition of the fact that it is usually the most contentious issue when it comes to obstructions on common land. I hope that the Minister will accept the amendment. It is essential to ensure that co-operation that we have seen on all sides should continue in this area. Given that we have reached agreement on so many aspects of the Bill, I should point out that this is our last sticking point. If there is some way of resolving it sensibly, the whole House would be extremely grateful.