Commons Bill [HL]

My Lords, Amendment No. 56 would remove the provisions that enable a national authority to consider an application for consent to undertake works under Clause 38 in circumstances where the works have been started or completed. The noble Duke, the Duke of Montrose, tabled an equivalent amendment in Committee. I gave an explanation then as to why we did not think it appropriate. That obviously did not satisfy him and his colleagues and I hope that I can do a little better this time. In our view, when works have been undertaken without the consent of the national authority under Clause 38, a sensible first step is to enable an application for such consent to be made. If no such application is submitted or if consent is refused, enforcement action can follow. This is not a transitional provision. Works undertaken while Section 194 was still in force could be the subject of an application under Clause 38 and that would then make them lawful. I should add that this provision does not take away any power that a landowner has to seek the removal of works undertaken without his consent, or any power that commoners have to seek the removal of works that adversely affect the exercise of their rights. The ability to consider a retrospective application relates only to the provisions of Clause 38. My officials currently accept applications in respect of works already started or completed, and I do not believe that that has caused any problems; nor am I aware that a specific power to accept a retrospective application is required but, to put the matter beyond doubt, we have included one in the Bill. I hope that that explains more clearly why we have taken the attitude that we have. I hope that the noble Baroness will be pleased with my attitude to her Amendment No. 57, which relates to the provisions in the Bill that amend Section 194 so that after the commencement of this Act any person would be able to take enforcement action against unlawful works undertaken while Section 194 was in force. We understand the point that the noble Baroness is making. We do not think that the enforcement provisions that we propose, and in particular the amendment to Section 194, is a retrospective provision in the true sense of the phrase, but we understand her concern. We are perhaps slightly moving the goal posts in respect of unlawful works undertaken before the Bill comes into force. Because of the way in which the noble Baroness and the noble Earl, Lord Peel, made their point, I am prepared to take this matter away for further consideration to see whether it is possible to come up with a suitable government amendment at Third Reading, but I make no promises.