Clause14Statutorydispositions Questionproposed, That the clause stand part of theBill. DavidMaclean (Penrith and The Border) (Con): I congratulate theMinister on taking this Bill forward. When I was Environment Ministerin the 1990s, we looked into commons law, and I was advised by theFederation of Cumbria Commoners that it was important that it be tidiedup. Then I listened to the wise advice of my officials in theDepartment, who said, “For God’s sake, Minister,don’t touch this with a bargepole; it’s anightmare.” So I congratulate the Minister on having the courageto tidy up the law; we support what he is doing. I also congratulatehis officials, who, I believe, have been to Cumbria on a couple ofoccasions to meet the Federation of Cumbria Commoners. Cumbria’sfederation is one of the largest in the country, and Cumbria has one ofthe largest patches—or lots of patches—of common land inthe country. AlthoughI have been briefed by that organisation, I apologise to the Ministerif I do not do justice to the complicated brief that I have beenseeking to understand. I wish to raise points about the regulationsthat may be made under the clause. The Government have stated that thepurpose of the Bill is to provide accurate and up-to-date commonsregisters to underpin commons management, through a duty on localauthorities to update and maintain the registers of common land, and toprovide that future transactions have no legal effect unless they areregistered. The problem is that the Bill does not do that completely;it is only 95 per cent. there. The Bill will be conclusive onwhat land rights attach to, and on the ownership of those rights ingross. But the register will not be updated or maintained to show whoowns the vast majority of rights—those that are attached. TheGovernment acknowledge that, and they rightly comment that it is notpossible for both the Land Registry and the commons register to beconclusive about the ownership of the dominant tenant. The federationagrees, but does not see a problem with requiring all transfers to benotified to the commons registration authorities. The registers havenever given proof of ownership, but if they are not kept up to date,they are useless for management purposes when commoners need to belocated. Also, significant costs will accrue to the Government andcommoners in cases in which identifying and communicating withcommoners is essential—for example, in respect of applicationsto establish statutory commons associations, applications for environmental stewardship schemes, applications to undertake works oncommons and compulsory purchaseprocedures. In theother place, the Government argued that there can be only onedefinitive record of ownership. Otherwise, which would take priority ifthere were inconsistencies between the Land Registry and commonsregister entries? The reason is undoubtedly correct; even I understandand agree with it, and that is what the federation says, too. However,it also says that that should not prevent the making of a requirementthat transfers of rights be notified—notified only—to thelocal authority and perhaps be accompanied by a certificate from theLand Registry, or something like that. The commons registers would notbe proof of ownership, but they would have all that informationattached to them, so at least they would then be useful workingdocuments. Without such up-to-date records, otherschemes—applications for commons associations and environmentalstewardship schemes—would become very difficult to set up. Thatwas recognised in the otherplace. I want toconclude by pressing the Minister to state in this place what hiscolleague Lord Bach said in the other place when pressed on a similarissue. Hesaid: “I acceptthat we should try to make the commons registers as helpful as possibleto those who do not need conclusive proof of the matters but who wishto have some idea of entitlement. We therefore intend to explore, inconsultation on implementation of Part 1, whether regulations shouldprovide that a declaration of entitlement to exercise rights can beincluded in the registers. I must stress that such a declaration couldnot and would not be conclusive or binding on any person, but it may behelpful that such information can be entered on the register, with anappropriate caveat. We will also consult on whether other informationcould be noted on the registers at the discretion of the registrationauthority, such as Land Registry title numbers and the identity of theowner of the dominant tenement when the authority last sought thatinformation from the registeroftitle.”—[Official Report, House of Lords, 25October 2005; Vol. 674, c.GC315-16.] It has been a weewhile since that debate in the other place when Lord Bach made thatcomment. I hope that the Minister will be able to say today that theGovernment’s thinking has moved forward—that theintention to consult has firmed up a bit, or that the Government havedone some preliminary consultation and come to a conclusion that thatis a route down which they wish togo. I want anassurance from the Minister that regulations will be made under thelegislation that enable dealings with the owner of the dominanttenement to be at least recorded on the commons register with asufficient sanction imposed for any failure to notify, so thatnotification becomes the standard conveyancing practice. When rightsare bought or sold and the Land Registry is informed, the registrationauthority should be automatically notified so that the commons registercan be similarly annotated or updated—I probably should not say“annotated” as that probably has some technical legalconnotation. An assurance on that from the Minister would make us veryhappy, and the Cumbria Federation of Commoners would be delighted thatI may have got the point across halfsensibly. Mr.Drew: I am delighted to serve under your chairmanship,Miss Begg. I do not intend to dwell on thissubject. However, the right hon. Member for Penrith and The Border(David Maclean) referred to a debate in the other place, and I wouldlike to address another aspect of the matter, which was an amendment ofLord Greaves on how to fast-track a registration of a common or avillage green. Through my noble Friend Lord Bach, the Governmentpromised to look into how that might be achieved. I know that they havedone so, but I am a little uncertain about what their position is inthis regard. Let usaddress a possible scenario. Someone in their later years might wish topass over a piece of land that has been used for many years for acertain purpose—the example of cricket use has been offered. Itmight have been used for that purpose for more than the 20years—that seems to be the key period—but if that personhappens to die before the land is passed over, according to theexisting law, it cannot be seen as either a common or a village green.I wish the Government to make it absolutely clear that there is amechanism whereby if someone wishes to pass a piece of land over foruse by the people for the people that is now possible and that we donot have to wait for the so-called statutory 20 years for that to beachieved. I would be grateful if the Minister could clarify exactlywhat resulted from the debate in the otherplace. 11.30am JimKnight: We have had a wide-ranging debate. I assure theright hon. Member for Penrith and The Border that according to myunderstanding, his understanding is entirely up to scratch. He shouldhave no worries on thatscore. It wouldprobably be ideal for all transfers to be recorded as he suggested, butI explained earlier that enforcing such a requirement would bedifficult. We are enabling it because we recognise that it would behelpful for the register to indicate who is entitled to exerciserights. I do not want to disagree with a single word that my nobleFriend the Lord Bach said in the other place. We will enable commonersto enter a supplementary note on the register declaring theirentitlement to exercise rights. The declaration will not be conclusive,but might be informative. We are also exploring thepossibility, which I hope the right hon. Member for Penrith and TheBorder will welcome, of providing in regulations under the Bill that acommoner need not be consulted on any matter affecting the commonunless he has declared his entitlement to those rights. We areexploring that at the moment. It would be an incentive for thosetransfers to be properly registered. If they are not, ownership ofrights and entitlements can be traced back through the Land Registry,but we agree that ideally it would be better to record that informationon the register. That is what we seek to achieve, but we cannot foreseea scenario in which a requirement to do so could be enforced. If,having read what I said earlier, the hon. Gentleman writes to me with away to do so, I will be happy to look atit. I turn tofast-track registration of town and village greens. Subject to thepassage of the Bill, it will be possible for an owner to dedicate a green underclause 15(7)without further formalities. I hope that that satisfies my hon. Friendthe Member for Stroud (Mr. Drew). We might discuss it very soon when wemove to clause 15 and itsamendments. Questionput and agreedto. Clause 14ordered to stand part of theBill. Clause15Registrationofgreens JimKnight: I beg to move amendment No. 1, in page 7, line 24,leave out ‘or (3)' and insert ‘, (3) or(3A)'. TheChairman: With this it will be convenient to take thefollowing: Government amendments Nos. 2 to5. Amendment No. 43,in clause 15, page 7, line 44, leave out subsection(5)(b). Governmentamendment No.6. Amendment No. 44,in clause 15, page 8, line 4, leave out subsection(6)(a). Amendment No.45, in clause 15, page 8, line 8, leave out ‘two years' andinsert ‘oneyear'. JimKnight: The amendments respond to a concern raised byConservative Front-Bench Members on Third Reading in another place thatland on which houses had recently been built might meet the criteriafor registration as a green under the clause. That situation mightarise if land had already been used as of right by local inhabitantsfor lawful sports and pastimes for at least 20 years before thedevelopment took place. It would be an unusual circumstance, but itwould be unacceptable if the clause were to allow the registration ofland where houses stand today. The amendments will prevent that fromhappening. If land was covered by a building or its curtilage on 18April 2006, the date the amendments were tabled, it will not beregistrable. PaddyTipping (Sherwood) (Lab): I am sure that the word“curtilage” has a good deal of legal significance.Presumably it applies to gardens, outbuildings and paddocks. Inprinciple, therefore, it could mean quite a large take of land. Can theMinister explain what curtilagemeans? JimKnight: I am grateful to my hon. Friend for offering methe opportunity. A judicial decision on the meaning of curtilage wasgiven in the Court of Appeal in 2000. He will recall, being a representative of Nottinghamshire, that the case was Skerritts of NottinghamLtd v. Secretary of State for the Environment, Transport and theRegions. The court held that land is considered to be within thecurtilage if it is part and parcel of the principal building or otherstructure. Land is within the curtilage if it is owned and enjoyed withthe principal building and can be regarded as ancillary to it. It is aquestion of fact and degree in each case, and examples include a yard,basement area, passageway, driveway and garden, which are intrinsicallypart and parcel of the house. If houses have been built on one part ofa larger area of land that has been used as a green, one would not expect the whole ofthe land to be regarded as the curtilage of the houses. If such houseshad physical enclosures around them to create their own space, theircurtilages might well be taken to be defined by those enclosures, butthose curtilages would not extend to the rest of the land. I hope thatthat is helpful to my hon. Friend. Several hon. Membersrose— JimKnight: I give way first to my hon. Friend the Member forSherwood (PaddyTipping). PaddyTipping: I know Skerritts, and am grateful for thedescription. However, this matter leads to difficulties. We have tolook at issues on a case-by-case basis. Clearly, a paddock at the endof a garden might or might not be within the curtilage of a building,depending on the history. We shall need to reflect on the issue alittle more, because it will becomecontentious. JimKnight: I am glad to say that I am not a lawyer, and Ihesitate to go much beyond my brief in trying to define whether apaddock is curtilage. My lay person’s view is that a paddock isancillary to a stable or other land on which horses are kept, but notto the principal building. However, as I say, I am not alawyer. Mr.Paul Truswell (Pudsey) (Lab): At the risk of being obtuse,may I pursue the Minister over the definition of a building? Is abuilding a house, barn, store, cattle shed, shelter orbirdwatchers’ hide? Are we talking about any sort of building?If so, will that not cause further problems, given that buildings mightbe erected to thwart town greenapplications? JimKnight: I feel a note coming on. The key phrase that Iused—and that I understand was used in the judgment of2000—was “principal building”. A shed, greenhouseor stable would not be regarded as principal. The definition ofbuilding is used in everyday speaking terms. I suggest that my hon.Friend should focus on the phrase “principal building” inthinking about thisissue. TomLevitt (High Peak) (Lab): I hope to catch your eye later,Miss Begg. I should like to raise a particular local issue. In the Minister’s view,is a graveyard curtilage? Would it make a difference if the graveyardwere fully occupied? If the chapel to which the graveyard was attachedwere derelict, would that make adifference? | 
