 House of Commons | Session 2005 - 06 Publications on the internet Standing Committee Debates Commons Bill [Lords] |
Commons Bill [Lords] |
TheCommittee consisted of the followingMembers:Gordon Clarke, Frank Cranmer,Committee Clerks † attendedthe Committee StandingCommittee DThursday 27April2006(Afternoon)[Mr.Mike Weir in theChair]Commons Bill [Lords]Clause38Prohibitionon works withoutconsent Amendmentproposed [this day]: No. 54, in clause 38, page 21, line 27, after‘of', insert ‘materially'.—[Mr.Paice.] 1pm Questionagain proposed, That the amendment bemade. No. 55, in clause 38, page 21,line 31, after ‘of', insert‘permanent'. No.56, in clause 38, page 21, line 33, at endinsert— ‘(d) the parking ofvehicles used asaccommodation.'. TheParliamentary Under-Secretary of State for Environment, Food and RuralAffairs (Jim Knight): I was talking about electric fencingwhen we stopped, and I hope that I had said enough to persuade theCommittee and the hon. Member for South-East Cambridgeshire (Mr. Paice)that electric fencing can be just as much of an impediment to access aspermanent fencing. We remain concerned that we should not exclude itspecifically. I wastalking about amendment No. 55 and the definitional problems that theword “permanent” might present. In any case, we do notsubscribe to the premise that what one might call temporary fencingshould simply be left out of the scope of the controls. I have a note in respect of thecontribution from my hon. Friend the Member for Stroud (Mr. Drew), whoI am pleased to see returning to his place, that says that we all knowof cases where stables on sleds are claimed to be temporary underplanning legislation but remain in place for years. I personally wasnot familiar with stables on sleds, but there are all sorts of ways ofconfusing the notion of things being temporary or permanent. We need totreat the whole subject with some care. Mr.Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I shall notdelay matters, but given that the Minister has just said that theamendments do not find favour with him, could he tell the Committeewhether it is possible to fast-track such applications? In other words,what is involved in getting the necessary consent, how long will ittake and what is the cost involved? JimKnight: I am grateful for that question. Recently, anexcellent code of practice was published with endorsement from variousbodies including English Nature, the Countryside Agency, the NationalTrust and the Open Spaces Society. It sets out useful guidelines on howcontroversy can be minimised and co-operative working maximised whenphysical changes such as fencing on a common are being contemplated sothat that fast-tracking can occur. We will be considering andconsulting on whether the power in clause 43 should be used to exemptworks of any particular character from the clause 38controls. I noted,for example, the comments from the hon. Member for Meirionnydd NantConwy (Mr. Llwyd) about restocking after foot and mouth disease andabout hefted flocks. It might be possible—I do notknow—to use clause 43 to make some exemptions. Generally, we cannot sensiblyput fast-tracking on the face of the Bill. We want to ensure that theprocedures are appropriate and proportional. Views differ widely aboutwhether works are beneficial and a fast-track system per se mightamount to pre-judging the merits of an application and run the risk ofunfairly sidelining one of the those views. We hope that we have theright balance and that the use of the code of practice willhelp. Mr.Philip Dunne (Ludlow) (Con): I am grateful for theopportunity to serve under your chairmanship,Mr.Weir. I want to drawto the Minister’s attention to a case just outside myconstituency, at Llynclys common in North Shropshire. An applicationwas made by the Shropshire Wildlife Trust, which manages part of thecommon, to erect fencing to protect biodiversity and to reintroducegrazing after the common had been under-grazed for a number of years.It took a total of three years to get the necessary consents, includingthe consent of the Secretary of State, and the process was eventuallycompleted in 1998. Obviously, it is conceivable that procedures havebeen speeded up in the past few years, but I have my doubts. Someguidance needs to be provided on the question of fast-tracking and howlong it will take in practice. JimKnight: I am certainly interested in such examples, wherethe delays and periods of time taken to process applications areunacceptable. My officials and I would want to ensure that we can dealwith such issues as speedily as possible. If controversy has beenminimised at the point of application, that makes things considerablyeasier and moreachievable. Mr.James Paice (South-East Cambridgeshire) (Con): Before theMinister moves on to the last amendment in the group, which is slightlyseparate, I shall challenge him, having listened to what hesaid. The Ministerdoes not seem to believe in any sort of de minimis situation, to repeata phrase that I used earlier. My right hon. Friend the Member forPenrith and The Border (David Maclean) referred to a temporary bit offencing to seal a hole in a wall during repair. Is it really theMinister’s view that everything, apart from any exemptions thathe may come up with under clause 43, should go to the Secretary ofState? Fundamentally, I was trying to introduce a sense of proportion as towhich things must undergo the inevitable panoply of time andbureaucracy involved in going to the Minister or the Secretary ofState. JimKnight: I understand that the hon. Gentleman’sintention is sound. I agree that we need to make things as efficient aspossible. As I said before lunch, it is very unlikely that trivial orinsignificant works on commons would be regarded as contraventions ofclause 38 as it is worded, because it uses the same wording as section194 of the Law of Property Act 1925. During the last 80 years, we havefound that there is effectively some de minimis, and the courts are notwilling to take action if frivolous, minor pieces of work are broughttothem. Mr.Paice: But as the hon. Member for Meirionnydd Nant Conwysaid this morning, we do not want to find out whether the court willact on it. By the time such a case gets to the court because somebodyhas raised a complaint, the commons association or whoever did thatminimal work has gone to the huge cost of employing legal advice andrepresentation, not to mention the cost to the public purse oforganising the court. We are trying to avoid all that. Simply sayingthat the court will not listen to the complainant and will find againstthem rather than the person who did the work is not really the samething. We are trying to prevent that situation from arising in thefirstplace. JimKnight: I have no desire for people to go to court unlessthey need to. The balance of judgment is whether the Committee believesthat a great queue of people are waiting for the opportunity to reportlandowners to court for undertaking the most trivial of works, and thatwe therefore need to pin the matter down in legislation, or whether itbelieves that we need to keep our present flexibility and therĂ(c)gime that has served for the past 80 years. To get into theproblems of defining words such as “permanent”, inrespect of fencing, puts the balance in the wrongplace. Mr.David Drew (Stroud) (Lab/Co-op): I am now in thefortuitous position of having the National Trust briefing, which I didnot have earlier, so I have greater sympathy with what the hon. Memberfor South-East Cambridgeshire is trying to do. As the right hon. Memberfor Penrith and The Border said, the issue is the definition of“permanent”. I could be persuaded if there were a way todefine what is likely to be referred to the Secretary of State withoutusing the word “permanent”. That sounds as though itwould not allow any discretion, and I always prefer to avoid going tocourt. The Minister might be able to consider that. Surely a positioncan be arrived at between mine—I want some greaterprotection—and that of the Opposition, who want to allow work tobe done without going to somebody further up theline. JimKnight: A position can be arrived at. It can be arrived atby using clause 43. If we can identify a form of fencing, for example,that does not prejudice the open character of the commons but achievesthe sort of effect that we have discussed—protectingbiodiversity or protecting people from falling down deep holes inCumbria—it might be appropriate to make a blanket exemption through clause 43 for that sort of work. Thatis why I am talking about flexibility, which the clauseprovides. Mr.Paice: Would that include the possibility of a timescale? Does the Minister envisage that clause 43 will exemptworks—an electric fence, for example—that is only therefor six months? Could a time scale be part of anexemption? JimKnight: I can perhaps reflect on that, and get someadvice about it. You never know, I might come up with an answer beforetoo long, or by the time we come to clause 43, given that we are nowdiscussing clause 38. We shall see. We shall have time to have anotherlook at the matter when we have finished the Committeestage. Amendment No.56 is an ingenious proposal. I am tempted to say, “Nicetry,” but that would trivialise what I know is a seriousproblem, especially in respect of Travellers’ vehicles. Iimagine that the majority of Committee members would sympathise withthe wish to deal with such problems when they occur and powers are inplace to enable local authorities to tackle them. For example, localauthorities can make byelaws, which are regulated under the Inclosure Acts or use their own local Acts. They may even make use of the offenceagainst camping on urban commons under section 193 of the Law ofProperty Act 1925. Amore recent measure, part V of the Criminal Justice and Public OrderAct 1994, especially sections 62A to 62D, also deals specifically withthe problem. Those provisions were inserted into the 1994 Act by theAntisocial Behaviour Act 2003 and create new powers and procedures fora senior police officer to remove such vehicles from the land inappropriate circumstances. Section 62D ensures that the powers areexercisable specifically on common land. They have been available sinceFebruary 2004 and I am sure that members of the Committee willencourage their local authorities to use them. We all want new measures to bein statute, but the problems arise when local authorities do not usethem. I am not enthusiastic about adding more measures if localauthorities are not using the existing legislationadequately. The hon.Member for North Cornwall (Mr. Rogerson) raised the matter ofvehicles advertising things. I agree with the hon. Member forMeirionnydd Nant Conwy that it is probably a matter for the planningauthority and the planning rĂ(c)gime, and happily I am notresponsible for it. The hon. Member for MeirionnyddNant Conwy also mentioned 4x4 vehicles. Works that present noimpediment to able-bodied people in trying to address the problem mightnevertheless impede the disabled; other works might impede horseriders, those exercising common rights and, dare I say it, even thosewho are lawfully allowed to drive on the commons. I argue that theclause as drafted ensures that all these issues are considered and donot get overlooked. However, perhaps someone will come up with aningenious device that will put a constraint on 4x4s if they are causinga problem and churning up the common, but allow the other users, whomwe want to be able to enjoy the commons, to do so. If such a device is found and isseen consistently to work, clause 43 can be used in that respect.Exemptions will be for minor and temporary works, so a time scale isinherent in the concept that lies behind clause 43. I hope that thathelps the hon. Gentleman. 1.15pm On the matterof mineral workings, which the hon. Member for Meirionnydd Nant Conwyraised, consent is needed for almost all significant works on commons.We consulted with the industry before removing the general exemptionthat was granted 80 years ago when works control on commons as a wholewas first introduced, but which we cannot now justify sustaining.Clause 38 consent will not be needed for mineral workings that alreadyhave planning permission when the Bill becomes law, provided that theterms of the permission are complied with. That is so even if the timelimit for implementation of the permission is extended. I hope thatthat helps the hon. Gentleman and I also hope that, on that basis, theamendments will be withdrawn. |
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