Mr.
Paice: The Minister’s response has been robust, and
that is no criticism. I was surprised when he said that nobody had
produced any ideas or suggestions about where the situation might
arise, because that was the purpose of my example, which the National
Trust provided. A future Minister might want to confer a function
enabling a statutory association to manage vegetation for agricultural
purposes, and we would then encounter a conflict about the issue of
heather management.
Jim
Knight: Perhaps I should have specifically addressed that
issue. We believe that the National Trust has no more or less power to
manage the vegetationon a common than any other common owner.
Notwithstanding the National Trust Acts, clause 36 could not therefore
affect the position.
Mr.
Paice: To save time, the Minister said earlier that he
will shortly meet the chief executive of the National Trust. The
amendments were tabled at the trust’s request in order to air
the issue, and it believes that the
amendment ought to be made. However, I shall not press it. I do not know
when that meeting is likely to take place. If the Minister can ensure
that it takes place before Report, we will have the feedback. If he can
allay the chief executive’s concerns, all will be well.
Otherwise, we might want to return to the issue on Report. The Minister
is nodding in agreement to that approach, and on that basis I beg to
ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 36 ordered to stand
part of the Bill.
Clause
37Variation
and revocation of establishment
orders Question
proposed, That the clause stand part of the
Bill.
Mr.
Williams: I rise to make the same point
that I made on clause 26, which concerns the establishment of a
statutory commons association. The point I made then was about who has
the power to initiate or make such an application. I believe that the
Minister replied not to that point, but to a point that he wanted to
make. The issue is about who can make an application for variation or
revocation of establishment orders, because somebody could make a
malicious or vexatious application to the Department for Environment,
Food and Rural Affairs, to Natural England or to the National Assembly
for Wales. Unless there is a limit on people who canmake
applications, then commons associations and commoners could have a huge
amount of work imposed on them, as could the Minister’s own
Department, so the Bill should say who can apply for establishment
orders and who can apply for
revocation.
Jim
Knight: As I have sought to articulate at all stages of
the Committee, we see establishment as a bottom-up process. On
variation and revocation, the powers set out in clause 37 allow the
national authority effectively to wind up a commons association in
three situations. We do not want to set out a formal procedure; we
expect Natural England, or the Countryside Council for Wales, to draw
matters to our attention—as the champions for
commons—when they think that there are problems, but we do not
want to give them formal statutory powers. If they think that there are
considerable problems in the way that an association is fulfilling its
duties or exercising its powers as set out in the Bill, we would expect
them to inform the relevant national authority, and if that authority
decided that it needed to take action, it would be able to do so under
the clause. We need to retain the flexibility that we have currently,
however. Question
put and agreed
to. Clause 37
ordered to stand part of the
Bill.
Clause
38Prohibition
on works without
consent
Mr.
Paice: I beg to move amendment No. 54, inpage
21, line 27, after ‘of', insert
‘materially'.
The
Chairman: With this it will be convenient to discuss the
following amendments:
No. 55, in clause 38, page 21,
line 31, after ‘of', insert
‘permanent'. No.
56, in clause 38, page 21, line 33, at end
insert— ‘(d) the parking of
vehicles used as
accommodation.'.
Mr.
Paice: We now move on to part 3 of the Bill, on protection
of commons, which is a very important aspect of the legislation. Clause
38 is about prohibition of works without consent, but it is clear from
subsection (1) that the relevant consent is that of the appropriate
national authority, which effectively means the Minister, and I think
that most people would say that a sense of proportion is needed
regarding which issues should go to the ultimate decision-making point
of a Whitehall Minister, when both the common and the issue concerned
might be very
small. Amendments Nos.
54 and 55 therefore seek to introduce a de minimis position and a sense
of proportionality on some aspects, as do certain later amendments that
could equally have been grouped with these, and to which I shall refer
later. Amendment No.
54 would simply insert the word “materially” into the
sentence that defines restricted works—works which require
consent—as “works
have the effect of preventing or impeding access to or over any land to
which this section
applies.” The Country
Landowners Association has suggested inserting the word
“materially” before the word “preventing,”
to prevent vexatious litigation and delay through someone saying that a
minor work has impeded access, when the work may be an
urgentand sensible piece of commons management. The
regulatory and, dare I say it, bureaucratic process of seeking
Government consent will be considerable, and the amendment deals with
that. Amendment No. 55
was touched upon on Second Reading. It refers to fencing. Obviously
nobody wants to fence off a common permanently. It is reasonable that
permanent fencing should require consent, because it seriously
undermines many of the attributes of much, although by no means all,
common land.For example, there are fenced commons in my
constituency. However, there is a distinction between that sort of
permanency and the temporary arrangements using electric fencing, for
example, which may be necessary to keep stock off
roads. 10
am We discussed on
Second Reading how much road traffic has increased and developed since
commons were invented. Not too many sheep were run over by horses and
carts, but they are more likely to be run over by a Harley-Davidson
roaring across the common, as I have seen in my constituency.
Sometimes, there is logic in requiring an electric fence to prevent
stock from straying on to roads. However, the converse is using
electric fencing to prevent stock from straying into areas of a common
that, for conservation purposes, it may be right to exclude them from.
Such fences may be used to keep stock off private property, which is a
matter of common sense, although arguably it is the private
landowner’s responsibility to fence stock out. Lots of gardens
and
drives open on to common land. However, it may be simpler to erect an
electric fence, rather that facethe major issue of
constructing permanent fencingon private land. The amendment
would insert proportionality into the Bill so that the Minister and his
officials are not besieged by requests for miniscule
works. Amendment No.
56 is slightly different; I touched on its subject on Second Reading.
It would insert in subsection (3) reference to the works that need
consent, especially “the
parking of vehicles used as
accommodation.” I am
aiming this measure at Travellers. In my constituency, we have the
serious problem, which is not unique, of Travellers parking on common
land and often leaving a dreadful mess behind, if they ever leave. It
is difficult to remove
them. The amendment
would not change the law on the illegality of parking on common
land—I am not suggesting that it does—but by including a
provision requiring people to get consent from the national authority
in charge of commons before parking a caravan on common land, it adds
emphasis to the perception that what they are doing is illegal. It
takes the matter beyond planning consent and the powersjof
the local authority—the planning authority—to national
consent through the
Government. The
amendments are straightforward and designed to improve the basis on
which the prohibition applies. I should be grateful if the Minister
agreed to
them.
Mr.
Drew: I concur with the hon. Gentleman on the last thing
he said about amendment No. 56, which makes a lot of sense. However, I
am concerned about amendments Nos. 54 and 55. If things are only
referred to as permanent—through the Secretary of State or his
representative—it prompts the question of whether anything
temporary will be allowed to exist for a significant period. All hon.
Members can provide instances of something that was agreed to on a pro
tem basis, but became effectively permanent because action was never
taken. I urge the
Minister to clarify what is meant by the words
“temporary” and “permanent”, if that is
possible. Also, I urge him to withstand the honeyed words of the hon.
Member for South-East Cambridgeshire, as there are some dangers in
laying down something that would make it difficult to intervene when
clearly there has been a
problem.
Mr.
Paice: I understand the hon. Gentleman’s concern.
Obviously, it would be unacceptable if a temporary fence—an
electric fence, for example—became permanent because it was left
in place for umpteen years. He is right about that, but I contend that
the Bill as drafted allows for that. I am tryingto insert the
word “permanent” in subsection (3), which lists
particular examples of restricted works. Subsection (1) states that
restricted works may not be carried out without consent. I would argue
that the structure of subsections (1), (2) and (3) means that if
something is considered permanent because it has been there for some
time, representations could be made to the Minister to say that it is
not temporary but outside the exemption created by my use of the word
“permanent”, and the legality of that fence could be
challenged at any stage if it appeared to be permanent but did not have
consent.
Mr.
Drew: That is why we need the Minister to arbitrate on
exactly what the terms mean. I understand what the hon. Gentleman is
trying to do, but there are dangers that one could diminish the power
to take action because of a lack of clarity about the grounds for
referring cases to the Secretary of State. I hope that the Minister
will put my fears to rest, and I urge him to stand firm on the clause
as
drafted.
Mr.
Llwyd: I support the amendments simply because we are
creating a new body of law thatis practical. The hon. Member
for South-East Cambridgeshire referred to instances when temporary
fencing is needed. For example, in conserving biodiversity, grouse
moors and so on, there are times when under-grazing is a problem but
also times when over-grazing is a problem. It is not reasonable to
expect somebody to apply for permission each season. All the expense
and trouble will put people off getting involved in management
procedures if they need to take that route each and every
time. Some examples
have been given of why one might need temporary fencing. I shall offer
one or two others. As a consequence of the foot and mouth debacle, many
thousands of hefted sheep have been lost from the uplands. Hefting of
sheep is not easy—it does not happen overnight—and
commoners have to put up fencing to re-heft sheep, if that is the right
term. If commons are to work, they need hefted sheep, but it is obvious
sheep cannot be re-hefted on most commons without fencing. Those of us
who live near common land see that day in, day out. It is a necessary
consequence of looking after living commons, which I hope we will
achieve by virtue of this
Bill. The point of the
exercise is to ensure that the procedure is simplified. I do not in any
way want people wrongly to fence off commons permanently—that is
not right, and none of us wants it. If somebody wants to install a
permanent fence for special reasons, he or she must apply for full
permission. That I fully understand, but this is an entirely different
kettle of fish. I
mentioned nature conservation. There are times when common land is
improved, or even when parts of it are reseeded, and that is all to the
good. One needs to fence in areas during reseeding. I am sure that
there are many other examples.
Mr.
Drew: But surely those are just the cases on which a
commons association or a commons committee would get consensus or
agreement and therefore there would not be any difficulty. We are
talking about cases where there clearly is a
dispute.
Mr.
Llwyd: No, there is
not.
Mr.
Drew: Well, it could well be that these are particular
cases where disagreement arises, which is why, as a failsafe, we can go
to the Secretary of State.
Mr.
Llwyd: I am not terribly keen on pushing cases through to
the Secretary of State and the National Assembly for Wales. They have
enough to do already. According to what I have just heard, some people
might not take the cases there, but that is a fresh political
point. I am talking
about prohibition on works without consent. It is an absolute
prohibition. I agree with what others have said eloquently, which is
that we need flexibility to allow temporary measures to be taken. That
is all the clause is about, and no more and no less. It is not a
back-door means of evading the Act. However, the hon.
Gentleman’s reading of the clause is slightly erroneous. It is
not do with disputes as such, but with restricted and prohibited
work. I fully agree
about the parking of vehicles to be used as accommodation. We all know
examples of that. I have no axe to grind with the Traveller community.
Part of the problem is that local authorities do not provide sites for
them, and that happens throughout England and
Wales.
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