Commons Bill [HL]

My Lords, perhaps I can begin by endorsing the tribute made by the noble Lord, Lord Livsey, to the long experience of the noble Lord, Lord Greaves, in local government. I declare an interest: we were both on Lancashire County Council for 20 years. We are not unused to having the odd friendly difference of opinion from time to time and agreeing at other times. I understand the concern of the noble Lord, Lord Greaves, that Ministers may come and go and that sometimes he fears that matters may not be followed up. Inevitably, there will need to be guidance circulated to local authorities on the Bill. So much in it affects the duties and powers of local authorities that we could not avoid giving guidance. I hope that that reassures the noble Lord. We envisage issuing a circular to local authorities about the implementation of the Bill. We agree that including guidance on the extent and use of their powers would be valuable and sensible and ensure that local authorities are encouraged to take their enforcement powers seriously. However, we do not consider it necessary or appropriate for a requirement for this to be prescribed in the Bill. It is essentially an administrative matter and Ministers have long adopted the convention of giving advice to local authorities in circulars. I am sure the noble Lord will agree that we have received many of these over the years. We are less convinced by the suggestion that Natural England and the Countryside Council for Wales should be required to report to the national authority on the operation and effectiveness of the enforcement regime. I note that the noble Lord, Lord Greaves, said that he was not prepared to die in the ditch for this part of his amendment. It could involve those bodies in a considerable amount of work, carrying out surveys of commons to identify potential problems. The enforcing role, which will in future be open to any person, should be sufficient to provide an appropriate level of protection against unlawful works at local level. If Natural England wishes to provide reports, Clause 3 of the Natural Environment and Rural Communities Bill would give Natural England powers to carry out research that supports its general purpose. Similar powers are available to the Countryside Council in Wales, so both bodies may in any case provide such reports as they think fit. On Amendments Nos. 61A to 61D, it will not surprise the noble Lord if I say that they do not strike quite the note we want in this part of the Bill. There are distinct elements to these amendments. The first would strengthen the requirement on all authorities to take enforcement action. The second would enhance the powers of management. On Amendment No. 61A, we do not see a duty on local authorities to enforce as desirable or appropriate and I am pleased that he recognised that. However, I draw his attention to the enforcement powers of local planning authorities. If they consider that unauthorised development is unacceptable on planning grounds, they have the power to take action but not a duty. As with planning enforcement, if the authority receives a complaint about encroachment on common land, the authority must consider that complaint. If the authority unreasonably fails to act—Amendment No. 61C focuses on what is reasonable—that matter can be taken up with the local authority’s members or, ultimately, can be considered by the local ombudsman. Just as we do not believe that there should be a duty on planning authorities, we do not think it is reasonable to require local authorities to act against encroachments. That would be an unwarranted fetter on their discretion to act as they think fit and to determine their own local priorities. However, I accept the noble Lord’s concern that conferring a power does not go far enough. That is why we have agreed to look at whether local access forums should be given guidance and further powers to offer advice on these matters to any local authority where an encroachment restricts public access. I would also remind the noble Lord that many local authorities are already under a duty to enforce against encroachments on common land where they have voluntarily entered into a scheme of management under the Commons Act 1899. The noble Lord may be pleased to know that there are more than 200 such schemes, most frequently relating to lowland commons, and in such cases the local authority has opted in to having a duty to enforce. We believe that that is the appropriate way. The noble Duke asked whether encroachment is the same as works. Not necessarily; encroachment is often just extending a private garden on to a common and does not necessarily involve works. If it does involve works which prevent or impede access, it would be caught by the controls. I hope that I have reassured the noble Lord, Lord Greaves, and that he feels able to withdraw his amendment.