Clause
43Power
to
exempt Question
proposed, That the clause stand part of the
Bill.
Mr.
Paice: I fear that the Minister has brought this debate on
himself by making frequent references to this
clause.
Jim
Knight: It is a great clause.
Mr.
Paice: It may be a great clause, but I want to invite the
Minister to explain, briefly, why that is. Without rehashing the ground
that we have already covered, I should like to make two points. The
first is that the Minister said earlier that the clause is specifically
intended for minor and temporary works; that is its purpose. It does
not say so anywhere, so I invite him to clarify that point. If that is
the intention of the clause, should it not say so?
The second point is that
subsection (1), which defines the orders, makes a lot of specific
statements about “the
carrying out by a specified person of specified works on specified
land; or...by a specified person, or a person of a specified
description, of works of a specified
description,” and so on.
The orders are going to be so specific that one wonders whether they
will be of any value for exemptions. Officials of the national
authority will have to do so much work looking at such a proposal to
decide whether to exempt it that they might as well approve it. I had
understood from the Minister’s interventions under clause 38
about this clause that it would deal with the problems that Opposition
Members have mentioned, rather than unnecessarily requiring the
national authority to deal with piffling—the Minister himself
used the word trivial—issues.
As drafted, the clause does not
achieve the objective that the Minister has proclaimed for it. I accept
and support his remarks, but they do not reflect what clause 43 says. I
suggest that, by the time officials have done all the work described in
the clause in order to decide whether to exempt any work, the time,
bureaucracy and cost—not just to the taxpayer but to the
applicant—will have been so great that they might as well have
gone through the approval procedure. That was the straightforward point
that I wanted to make. I look forward to the Minister’s trying
to clarify it for
us. Paddy
Tipping (Sherwood) (Lab): The hon. Gentleman is right to
say that we need to clarify the point. This morning, under clause 38,
the Minister was clear about the use of the words
“temporary” and “minor”. I am keen to get
that on the record. The problem is that we could have different views
about the meaning of temporary and minor. I take temporary to mean
weeks and months, rather than years. I have seen
applications from bodies that are called temporary, but stretch into
years. It would be useful to have an idea about what is considered
temporary. We also need to discuss what constitutes minor.
This morning, the right hon.
Member for Penrith and The Border (David Maclean) gave a number of
examples of things that were clearly temporary, and the Minister told
us that electric fencing would not be viewed as temporary. He is right.
In many cases, clause 38 should be used. However, in response to the
hon. Member for Meirionnydd Nant Conwy, he said that tank traps could
be regarded as temporary. I am not sure that that is correct. We are
talking about matters of judgment. I agree with the hon. Member for
South-East Cambridgeshire that the measure will create a lot of work, a
lot of difficulty and a lot of angst. It is in our interests to be as
clear as we can about what the clause stands for and what we mean by
temporary and minor.
Mr.
Llwyd: On a point of information and to try and enlighten
the Committee, I should say that the hon. Member for Sherwood (Paddy
Tipping) is quite right: we should tease out a bit more information on
this issue. On the main road between Dolgellau and Bala, in my
constituency we had temporary traffic lights for 27
years. David
Maclean (Penrith and The Border) (Con): I want to return
to the point about minor works and fencing. It is not fanciful; almost
every day of the week in the Cumbrian fells and around the country,
gaps appear in stone walls and six ft of wall falls down. Every farmer
then automatically sticks a little bit of electric fencing or sheep
netting on it. Under clause 38, they would have to apply for permission
for that temporary fencing.
The Minister says, “No,
don’t worry; clause 43 can exempt that sort of thing”,
but will he confirm that clause 43 is general enough to exempt all
farmers in that hypothetical situation, or would the farmer who has
found a gap in his wall have to get a specific order to be exempted
from the provisions of clause 38? I shall assume that none of us wants
a farmer who puts up five yards of fencing for six weeks to have to go
to the Secretary of State for an exemption.
Jim
Knight: Generally, if a wall is bounding the
common—on the perimeter, as is often the case—it is not
part of the common, but the surrounding farm land. Therefore, the
farmer can do what he likes with it. Obviously it is a different ball
game if it is inside the
common.
David
Maclean: There will be a mixture and many walls will be
inside the common. Cumbria is awash with walls; it is still a common,
but there are walls across the parish boundary and temporary walls are
used to hold sheep, particularly at lambing time.
On walls inside the common that
are caught by the provision, will the Minister reassure the Committee
that clause 43 will allow him to make a general order? He might be
persuaded before Report that there is a genuine problem relating to the
temporary stopping up of a hole in a stone wall with a fence. He might
think,
“Yeah, that’s okay, that is smaller enough, de minimis,
minor and is not going to drive a coach and horses through the law; I
am happy to allow that”. Under clause 43, will he be able to
make general regulations that will apply to every farmer or commoner in
the
country? Jim
Knight: The right hon. Gentleman is talking about stopping
up walls, but maintenance to existing works does not need
consent.
David
Maclean: We are narrowing it down, but what happens when
all the stones have fallen down and there is a gap in the wall, which
the farmer plugs with a temporary fence while he spends the next few
weeks sticking the stones back up and rebuilding the wall with the
intention of doing a bit a dry stone walling or dry stane dyking? Is
that maintenance? It is the erection of a fence, not
maintenance.
Jim
Knight: My interpretation is that that would be
maintenance because the farmer would not be erecting anything new or
substantial while he maintains the wall. If I am wrong, I shall write
to the right hon. Gentleman, but I am pretty sure that that would be
the
case.
David
Maclean: I am grateful for that; we are getting some
elucidation, but still dodging the point. The regulations that can be
made under clause 43 are specific to individuals and commoners who have
to come along and ask for an exemption. If the Minister finds another
category of minor works that he thinks is perfectly okay to exempt
under clause 38, such as fencing, it does not seem that clause 43 would
provide the power to make that general exemption apply to everyone of a
particular category. It seems that, under clause 43, he can make an
exemption only once someone applies and goes through all the procedure
to get that exemption and become a specified person with a specified
works in a specified area. Will he be able to make general exemption
powers apply to everyone without their having to
apply?
2.15
pm
Mr.
Dunne: I briefly endorse the comments made by my hon.
Friend and by the hon. Member for Sherwood. I would like also to
highlight two particular
problems. It seems
unnecessary to burden commons associations with the cost of providing
the input to enable an order on perhaps minor issues to be written in
such specific language. The bureaucratic processing of all those orders
would also increase costs in the Minister’s Department and
should not be treated lightly, not least if he hopes to meet his
Gershon efficiency
targets.
Jim
Knight: I am grateful for this debate because it helps to
clarify matters. I was asked by the hon. Member for South-East
Cambridgeshire and my hon. Friend the Member for Sherwood to clarify
that we regard the provision as being for minor and temporary
works. We do regard it as such, and I shall look at whether it is
appropriate to put that in the clause title. However, for now, I can
give the clarification that the Committee
seeks. There have been
other questions about the clause being too specific. There is a danger
that because the word “specified” is repeated so many
times in subsection (1), one becomes blinded to some of the other
words. Subsection (1)(a) is very specific; it uses the word
“specified” three times. However, it ends with the word
“or” before moving on to subsection (1)(b), which starts
with “a specified person”, but then becomes more general
by referring to
“or a person of a
specified description, of works of a specified description
on— (i) any
land; or (ii) land of
a specified
description.” Clearly,
that allows us to issue exemptions to categories of works, rather than
applying, as does paragraph (a), to specified persons doing specified
works on specified land. I hope that that helps the
Committee. My hon.
Friend the Member for Sherwood talked about tank traps. As I said to
the hon. Member for Meirionnydd Nant Conwy, the Country Land and
Business Association made an interesting point about tank traps.
However, I said also that if we could find a suitable device, we might
think about it. However, I am not sure that a tank trap is that device.
I hope that that is
helpful. Question
put and agreed
to. Clause 43
ordered to stand part of the
Bill. Clause 44
ordered to stand part of the
Bill.
Clause
45Powers
of local authorities over unclaimed
land
Mr.
Drew: I beg to move amendment No. 82, in clause 45, page
25, line 39, leave out
‘may'.
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 83, in clause 45, page 25, line 40, after
‘(a)', insert
‘shall'. No.
84, in clause 45, page 26, line 1, after ‘(b)', insert
‘may'. No. 85,
in clause 45, page 26, line 3, at end
insert ‘;
and (c) may apply (under
section 97 of and Schedule 6 to the Land Registration Act 2002 (c. 9))
to the registrar to be registered as the proprietor of a registered
estate in the land as if the authority has been in adverse possession
of the estate for a period of not less than ten years ending on the
date of application. (2A) The
land registered in accordance with subsection (2)(c) shall vest in the
local authority under this section together with section 10 of the Open
Spaces Act 1906 (c. 25) (maintenance of open spaces and burial grounds
by local authority) or, if that is the case, the Commons Act 1899 (c.
30).'. No.
86, in clause 45, page 26, line 7, at end
insert ‘;
and (d) a national park
authority or area of outstanding natural beauty conservation
board'.
No. 87, in clause 45, page 26,
line 7, at end insert— ‘(4)
If the land is regulated in accordance with a scheme under the Commons
Act 1899 (c. 30), a parish or community council may only apply for
registration in accordance with subsection (2)(c) if the powers of
management of the scheme have been delegated to that
council.'. No.
104, in clause 45, page 26, line 7, at end
add— ‘(4) Where subsection
(1) applies and a commons association established under Part 2 does not
exist in relation to the land, a local authority may assume and
exercise any of the rights of management of the land which would
otherwise be held by the owner, until such time as a commons
association exists or the owner is
identified.'.
Mr.
Drew: Six of these amendments are in my name, but
amendment No. 104 is in the name of the hon. Member for Brecon and
Radnorshire. I shall let him have all the fun of mentioning every
common that might need to be included because its ownership is not
clear. I shall stick to amendments Nos. 82 to 84, which are technical,
and then say a little about amendments Nos. 85 to
87. Amendments Nos. 82
to 84 try to clarify exactly what we would expect of a local authority
when there is no known owner and a clear need for works to be done or
stopped. This series of amendments is necessary to identify sites of
special scientific interest that are in an unfavourable condition and
it would force local authorities to take responsibility for that common
land. Although
amendment Nos. 82 and 83 simply change “may” to
“shall” and amendment No. 84 includes “may”
elsewhere, they seek clarification from the Government. There seems to
be a vacuum in responsibility for the protection of common land with no
clear ownership. After all, it is in the public interest for such land
to be protected. Again, this is a matter for which local authorities
should be duty bound. I understand what my hon. Friend said earlier
about the relationship between duties and powers, and I intend to push
that issue. However, unlawful interference is not uncommon, and it is
too easy for local authorities to say that they do not have any
responsibility. They certainly do not have the means.
On amendments Nos. 85 to 87,
the Government suggested that section 9 of the Open Spaces Act 1906 can
be used to acquire unclaimed land. The difficulty is that section 9
allows purchase only by agreement, and that is not possible if the
owner is unknown. Other statutes provide compulsory powers. For
instance, there is section 89 of the National Parks and Access to the
Countryside Act 1949, and schedule 2 to the Compulsory Purchase Act
1965, which includes an untraceable owner procedure that requires
obtaining a valuation, paying it into court and then obtaining a
vesting order. It is
essential that we find a mechanism for local authorities to deal with
the problem of land that has no clear ownership. Section 8 of the
Commons Registration Act 1965 allows for such a mechanism with regard
to village greens. The mechanism is not nearly as clear for common
land. I hope that my hon. Friend will be able to clear that up. I also
support the hon. Member for North Cornwall, whom I am sure will explain
why we tabled amendment No. 104.
Mr.
Dan Rogerson (North Cornwall) (LD): I wish to speak to
amendment No. 104, which is tabled in my name and those of my hon.
Friends and the hon. Member for Stroud. In the same spirit as the hon.
Gentleman’s amendments, this amendment is about the local
authority taking action where land is not in the state that we would
like to see. In many areas, the problem is that unclaimed land is used
for purposes that are a nuisance to the local community. The
landis not brought up to the standard that we
wouldlike for environmental purposes, for maintaining
archaeological features, or for ensuring that it is a useful amenity
for the community and that it is used as it was originally intended.
Our amendment seeks to ensure that a local authority would exercise
powers in the absence of a commons association and take action, so that
those issues could be resolved to the benefit of the local community
and those who enjoy the land.
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