Commons Bill [HL]

moved Amendment No. 75:"Page 32, line 21, after ““(3)”” insert ““, (3A)””" The noble Lord said: My Lords, this is the last group of amendments on Report. It includes government Amendments Nos. 75 to 78 and Amendment No. 79, in the name of the noble Baroness, Lady Byford. Unusually, I shall deal with that amendment, in passing at least, before the noble Baroness has spoken to it, because, as I will explain in a moment, we are happy to consider it. Government Amendments Nos. 75 and 76 respond to amendments that the noble Lord, Lord Greaves, tabled in Grand Committee and which we agreed to consider. They relate to the provision in Schedule 1(2) that enables application for the registration of waste land of the manor. Such applications must relate to land provisionally registered as common land under Section 4 of the 1965 Act but where the registration was cancelled in certain circumstances. These amendments—Amendment No. 75 is simply a paving amendment—provide that application under paragraph 2 will be possible in one new class of case. That is where the registration was referred to the Commons Commissioners—they were here at the start of Report and are here in the last group—and the commissioner concluded that the land was not subject to rights of common but failed to go on to consider whether the land qualified to be registered as waste land of the manor. In our view—and the courts lend that view some support—the commissioner should have considered the question of status as waste land of the manor regardless of whether or not it was argued before him. That is because the commissioner was not simply deciding a case between the parties to an application but determining a matter of public interest. So this amendment will enable such cases to be reviewed where application is brought forward under paragraph 2 and where the land continues to have the status of waste land of the manor at the time of application. Amendments Nos. 77 and 78 address the other side of the coin in Schedule 1. Paragraphs 4 and 5 of that schedule deal with deregistering wrongly registered common land and town or village greens. The amendments respond to a concern raised by the noble Earl, Lord Peel, about the criteria for application under those paragraphs. As the Bill stands, an application could not be made in respect of any land where the original registration was referred to the Commons Commissioner for determination. That is because the commissioner was the proper tribunal to sort out any disputes about registration and we do not intend to reopen such matters, which were thrashed out at the time. But the noble Earl told us that there was a possibility that paragraphs 4(2)(b) and 5(2)(b) could be read as meaning that an application could not be made even where the commissioner was required only to determine the rights exercisable over the land. Where there was no objection to the registration of the land itself, the commissioner was unable to remove the land from the register, even if it was patently obvious that the land was not common land. We believe that the Bill already has that effect but are happy to ensure that the matter is put beyond reasonable doubt. Amendment No. 79 reprises an amendment tabled in Committee by the noble Baroness, Lady Byford. I apologise to the noble Baroness that we have not addressed the issue in our amendments or in correspondence. We have looked at the concerns briefly raised by the noble Baroness in Committee and have some residual doubt about whether the wording of paragraph 5(3)(a) ensures that the physical impediment must have been present for the whole 20-year period. That is why we felt unable to respond to her amendment in Grand Committee. We are continuing to consider whether amendment is necessary but do not believe that Amendment No. 79 fits the bill. Should an amendment be required, we will aim to table one at Third Reading. I beg to move.