Commons Bill [HL]

My Lords, I thank noble Lords for an interesting debate on Part 3, which is an important part of the Bill. Amendment No. 46 proposes the insertion of the word ““materially”” into Clause 38, and provides that only works that are a material impediment to access, together with those that prevent access, are covered by the controls on works. Amendment No. 47 provides that fencing would be a type of work that would always need the consent of the authority, as the amendment removes the test that the fence must prevent or impede access. Amendment No. 48 is consequential to Amendment No. 47. These amendments touch on the question of how we ensure that the controls on works cover only those works which prevent or impede access, and do not extend to works that do not. As a consequence, I understand precisely what the amendment is trying to achieve, and I agree that it is in everyone’s interests for there to be clarity on the question of the works covered by the controls. It is certainly a different and better group of amendments than was tabled in Committee, and we certainly see no objection to part of it. Amendment No. 47 clarifies fencing as a type of works that should be covered by the controls in all circumstances. But we still have difficulty with the introduction of the word ““materially””, even if only in relation to works that impede access. This seems an appropriate moment to break off to answer the noble Lord, Lord Greaves, who asked the difference between ““prevent”” and ““impede””. A continuous fence around a common would prevent access, while a ditch or embankment would impede access. These are words that have been used for many years, as the noble Lord knows, and have not really caused problems. In shorthand, ““prevent”” means ““stopping altogether””, while ““impeding”” means ““obstructing”” and perhaps ““stopping temporarily””. There is a real difference between the two words. There is a raft of types of work that fall into the category of impeding, rather than preventing, access—for example, ditches, embankments, bollards and railings. It seems to us that the amendment might send misleading signals to those undertaking such works and as a result might encourage some works with a very significant impact on access being undertaken without consent. I do not want to repeat everything I said in Committee, but works that present no impediment to able-bodied people might impede the disabled. Other works might impede horse riders, those exercising common rights and, dare I say it, those who are lawfully allowed to drive on commons. The present construction of the clause ensures that all those issues are considered and do not get overlooked. I listened with great care to the points made by all noble Lords, but I shall refer particularly to the points made by the noble Earl, Lord Peel, during Committee. We share his view that common land needs to be managed effectively—we all share that view—and that works necessary for the proper management of the land that do not prevent or impede access to it should not be subject to these controls. The difference between us seems to be that the noble Earl believes that Clause 38 somehow changes the position in respect of the type of works covered by the controls, and goes further than previous provisions contained in the now famous Section 194 of the Law of Property Act 1925. While I accept entirely that the area of land to which the controls apply is modestly different, because Clause 38 applies to all registered common land, not only to land subject to rights of common way back in 1926, I do not believe that Clause 38 introduces any significant changes to the types of works covered by the controls. If there was some misunderstanding about the nature of the controls contained in the 1925 Act at the time, that is unfortunate, but we cannot allow that to dictate our decisions now. It may help the noble Lord if I explain that most of the works with which he is concerned do not in our view constitute works that would prevent or impede access. I wish to put that on the record. I will boldly assert that setting Larsen traps or crow traps does not fall within scope. Similarly, I cannot see that a scrape for lapwings is the type of works that would be caught by the controls in Clause 38. I would go so far as to say that constructing a small shooting butt on a very large common is also so slight in its context that, if it does impede access, it is likely to fall outside a de minimis test which the courts would employ in deciding whether to enforce against any breach of Clause 38. I emphasise that the reference to ditches, trenches and embankments in Clause 38(3)(c) is intended to add clarity, to make it clear that these are the types of works that may prevent or impede access. The Bill does not provide that all such works prevent or impede access: that will be a question of fact in each case. The maintenance of such structures—for example, the clearing of ditches—would not in my view be caught by the controls. The noble Earl, Lord Caithness, talked about frivolous challenges. We have heard that the controls in Clause 38 will be enforced more assiduously than before because Clause 41 enables anyone to go to court to enforce them. It has been suggested that this will lead to enforcement by members of the public or organisations in frivolous or vexatious cases. I do not accept that. First, experience shows that people rarely bring actions in court, even though they may have the power to do so. Court action still tends to be a matter of last resort. Secondly, the courts know very well how to deal with litigants who bring actions in respect of trivial matters. They may refuse to grant the order, or they may decline to award costs to the applicant, or they may adjourn consideration of the matter to give the respondent time to apply for consent for the works in question. We are told that actions will be brought to abate minor features such as shooting butts. That would be surprising to say the least. Even if they fall within the controls, we think that amenity organisations will have bigger fish to fry than such matters; unlawful fencing and buildings on common land are far more likely to be the target of action. As I have said, the scope of these controls differs very little from those contained in Section 194 of the Law of Property Act 1925. I do not accept the argument that we should move the goalposts in this Bill because people were previously able to undertake unlawful works without fear of enforcement. The noble Baroness referred to the letter I sent to noble Lords. I thank her for her kind comments about it. I wish to quote part of it that is relevant to this debate, which states:"““I would like to clarify a misunderstanding about access. The Law of Property Act 1925 itself (in Section 193) introduced a public right of access to certain urban commons and manorial waste, with the option for landowners of granting access by deed over other common land; a right of access to other commons may also have existed under Schemes of Management made under the Commons Act 1899. De facto access was also available on many other commons. Our understanding is that section 194 was enacted as a political compromise””—" they did it even then—"““specifically to ensure that de facto access to rural commons (not otherwise subject to rights of access) was preserved by regulating the powers of the landowner to erect fencing or other physical impediments to that access, notwithstanding the absence of any legal right to enter on the common. Introduction of a right of access via the Countryside and Rights of Way Act 2000 has only changed the position inasmuch as the public have a legal right of access to a far greater area of land””." Our case is that Section 194 was, even then, about protecting de facto access. However, we have also conferred on the national authority in Clause 43 a power to exempt works from the controls. That will enable us to introduce, if necessary, greater clarity where there is real uncertainty. I cannot give an assurance that we shall make orders to exempt any particular works—we shall come to that discussion a little later—but I certainly intend to consider the scope for exemption orders as part of our programme for implementing the Bill and bringing into force the provisions of Part 3. I hope my comments will, at least to some extent, allay noble Lords’ concerns about minor works. In the light of those comments—I have chosen my words carefully for the record—I ask that these amendments be withdrawn.