Commons Bill [HL]

My Lords, in moving her amendment the noble Baroness said that in 1925 there were no rights of access. That is not technically true. The Law of Property Act 1925 gave rights of access over urban commons, many of which—especially in the north of England—were very far from urban. But that is only a partial correction, which I hope she will accept. We had an interesting discussion about this whole question in Grand Committee. I do not think that we bottomed it properly then and I do not think we are doing so today. The Government need to think a little more carefully about this issue before the Bill finally gains Royal Assent. There are two parts to the amendment—one relating to fencing and one relating to the word ““materially””. I shall deal first with the question of the word ““materially””. At the moment, subsection (2) defines ““restricted works””—that is to say, works which have to have consent; there is a prohibition on such works without consent—and paragraph (a) refers to,"““works which have the effect of preventing or impeding access to or over any land to which this section applies””." Quite clearly, any works which stop people accessing common to which they have a right of access through the CROW Act or any other legislation are to be included in the category of works which require consent. I understand the points made by the noble Earl, Lord Peel, but my concern relates to the words ““preventing or impeding access””. Can the Minister tell the House what is the difference between ““preventing”” and ““impeding”” and why two words are used instead of one? The more I think about the word ““impeding”” the more I do not understand exactly what it means. I am thinking of situations on the ground, as was the noble Earl. If people need to dig a ditch, for example, to enable sensible management of the land, wherever the ditch goes it will prevent people walking from one place to another unless, depending on how big it is, they jump over the ditch, swim across it or clamber down and clamber up again. So it will prevent or impede their access in that sense. But if a plank bridge is put across it in a sensible place, the ditch will not materially impede their access because all they will have to do is walk a few yards one way, cross the ditch and walk a few yards back on the other side. It is clearly practical and sensible that people should be able to carry out minor works to do with managing a piece of moorland or fallow land—particularly moorland, where ditches are concerned—without having to apply to Natural England. As I understand it, Clause 38 says that if you want to dig a couple of entirely sensible drainage ditches on a common, you cannot do it without going through the procedure of applying to Natural England. If you want to carry out substantial works on a common, it is sensible that you should have to apply. But if the provision applies to minor works such as the noble Earl mentioned, it will put in place bureaucratic barriers which will not be sensible when a commons association is managing a common. There is a concern here. ““Materially”” may not be the word; I should have put ““significantly””, although I am not sure that that is right either. There is a de minimis issue here of people being able to get on and do the things that are listed in Clause 38. The second point concerns fencing. I am not sure whether the amendment does what Conservative Members want it to do, or perhaps it does. As I understand it, the amendment would impose stricter rules for fencing than are provided for in the Bill. If they want to do that, I will support them, although I can see circumstances in which de minimis fencing—or temporary fencing, if it is a question of controlling and managing stock—might be sensible. But if the Conservatives are saying that restricted works should include fencing per se rather than only fencing which has,"““the effect of preventing or impeding access to or over any land””," I would support them, and welcome them to the side of the angels for once. The basic points put forward by the noble Baroness and the noble Earl are important. We want a regime that prevents people doing things on commons that stop others getting sensible access to any part of the common to which they can get access. We do not want to force commoners, owners, commons associations or anyone else to go through intricate bureaucratic processes to carry out minor works which are sensible for the management of the common.