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Countryside and Rights of Way Bill

8.40 p.m.

House again in Committee on Clause 1.

Baroness Byford moved Amendment No. 14:

The noble Baroness said: In moving Amendment No. 14, I shall speak also to Amendments Nos. 20, 29 and 32 tabled in my name.

Amendment No. 14 inserts on page 2, line 1:

    "unless a contrary intention appears",

which is self-explanatory.

Amendment No. 20 inserts at page 2, line 12:

    "'Inner London' means the area comprising the Inner London boroughs"

and so on and so forth. We have tabled the amendments to ask the Government for clarification. Linked in the same group is Amendment No. 29 which inserts at page 2, line 18:

    "'owner' in relation to any land means ... any person, other than a mortgagee not in possession, who, whether in his own right or as trustee for another person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let".

Amendment No. 32 inserts at page 2, line 21:

    "'regulations' means regulations made by the Secretary of State (as respects England) or by the National Assembly for Wales (as respects Wales);

    "'telecommunications code' and 'telecommunications code systems' have the same meaning as in Schedule 4 to the Telecommunications Act".

These amendments are important. They are to consolidate into one clause the definitions which apply in Part I. At present they are contained in Clause 1 and in Clause 41 at page 23. Seven of the 15 definitions in Clause 41 refer back to Clause 1. Clause 41 also contains important definitions of the owner, interest and status of the Norfolk and Suffolk Broads. It seems to us to be better to put such definitions into one place in the Bill.

Subsection 2A leaves out a reference to Section 2(5) in the original provision of Clause 41(2). That relates to Amendment No. 85 which deletes the narrow definition of "owner" as "tenant farmer" in Clause 2(5). I beg to move.

Earl Peel : I wonder whether it would be appropriate for me to try to establish from the Minister the exact meaning of the term "owner" in the Bill. On any land which is likely to be access land, it is not clear to me

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whether it is the tenant or the owner of the land who has the responsibility for exercising the options under Schedule 2 and Chapter II.

Perhaps I may give an example. I refer to allotment land or new take land, which is a term used in Devon. I presume that if anything untoward occurred, it would be the tenant who would exercise powers under Schedule 2 and Chapter II. In that case, requesting the offender to leave the land would, as I understand it, apply only to the land in the ownership of that tenant or, indeed, of an owner occupier. However, presumably if the tenant rented additional land, such land would also be included as part of the excluded land.

But if the offence of trespass took place on the open hill and the tenant had only the grazing rights, albeit as part of the tenancy of the in-bye land, I assume that the owner of the land or his employee would exercise the sanctions against the trespasser. I assume that on the grounds that the grazer does not have what is known in agricultural terms as exclusive possession.

That being the case, presumably the person in breach of the regulations would be excluded from entering all open land owned by the same person. However, I wonder whether that would include land owned by the same individual but subject to a tenancy? Further to that is the question of common land where I assume the right to operate such sanctions would rest with the owner and would therefore include any other common land that he owned within the access area. I also wonder whether a commoner, somebody who has the rights to graze on that land, who found somebody contravening either Schedule 2 or Chapter II, would have the right to ask that person to leave the common, or would he have to ask the owner to exercise the exclusion?

As the Bill stands, it is unclear as to who exercises such rights. The idea of trying to explain to a trespasser which land he is precluded from will be an additional problem which again we need to consider carefully. I know that we are not dealing with it now, but I suspect that it will be much easier to make it obligatory under the Bill to include all access land as covered under Amendment No. 91. We will no doubt deal with that when we come to it. However, it would be immensely helpful if the Minister could explain to the House who is responsible for dealing with somebody who transgresses these offences and becomes a trespasser.

Lord McIntosh of Haringey: I hope that the noble Baroness, Lady Byford, will forgive me for saying that there are two kinds of amendments in this group. One kind is technical and, as the noble Earl, Lord Peel, has made clear, one is important. The technical amendments concern where the different definitions should appear in the Bill. The amendments provide that many more of the definitions which are otherwise found in Clause 41 are brought forward into Clause 1. The reason for that is simple. It has been followed in the drafting of legislation for many years. Unless there is to be a whole definition section in a Bill, which may be necessary but does not appear to be here, they

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appear where they are needed. In other words, where the definitions are needed for Clause 1 of the Bill, they are included in Clause 1 to make it easier to understand that clause; where they are needed in the course of Part I, they are included at the appropriate point; where it is only a matter of clarification at the end, they are included in Clause 41 at the end of Part I. That is simply a drafting issue.

But Amendments Nos. 29 and 32 are much more significant, as the noble Earl, Lord Peel, recognised. They would provide that a person who breaches a restriction on access land and is rendered a trespasser, would lose the right of access to all land in the ownership of the person entitled to the rack-rent of the land; that is usually the freeholder.

The definition being asked for by the noble Earl, Lord Peel, appears in Clause 2(5), which provides that,

    "'owner', in relation to any land which is subject to a farm business tenancy within the meaning of the Agricultural Tenancies Act 1995 or a tenancy to which the Agricultural Holdings Act 1986 applies, means the tenant under that tenancy, and 'ownership' shall be construed accordingly".

That is the formal answer to the question of the noble Earl.

However, the noble Earl, Lord Peel, asked more on that point. He wanted to know what is the effect of that definition. It is legally correct but I agree that it is not explicit. Where a person is subject to a farm business tenancy, then it is true that the statutory right of access is lost for the whole of that land. Where the land is not subject to a farm business tenancy, then the statutory right of access is lost to the whole of the land belonging to the freehold owner.

The noble Earl suggests that it is more complicated for a trespasser--I am glad to see his concerns for the problems of the trespasser--to know whether any other land is likely to be owned in the sense of Clause 2(5); in other words, in the possession of the tenant or the owner in the terms in which the Act is drafted. It may be difficult, but it is nothing like as difficult as expecting the trespasser to know what other land is in the possession of the freehold owner, which is what Amendments Nos. 29 and 32 provide. I agree that in the less common cases, where a tenant has dispersed land with gaps in between, there could be a problem for the trespasser in knowing whether he is excluded from other land which is not contiguous. But it is much less of a problem than would be created by the amendments before us.

The noble Earl, Lord Peel, also asked whether a commoner can ask a person in breach to leave the land. Let me make it clear that the definition of "owner" has no effect on who may require a trespasser to leave the land. That is a matter of private law. It depends on the specific arrangement made between the landowner, his tenant and any others with rights over the land, such as sporting tenants. The Bill does not take away any rights which those people may have to exclude trespassers; it merely demarcates the area of land to which a trespasser may not return.

Generally, commoners will not have any right to require trespassers to leave the common, whether under the present law or under the Bill. But a

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commoner may be authorised by a landowner to act as his agent in that regard. In those circumstances he would have the right to require a trespasser to leave the land.

The Earl of Caithness: I am grateful to the noble Lord for giving way. Perhaps he will clarify that point again for me, because he was going quite fast.

As I understood him, he said that it was a matter of private law as to who could ask a trespasser to leave. Can he take that a stage further? Does he mean that only one person or only one party can ask a trespasser to leave? If a freeholder has a farm tenant over whose land a third party has sporting rights and over which another party has an interest, can only one out of the four ask a trespasser to leave or can all four separate parties ask a trespasser to leave?

Lord McIntosh of Haringey: My first and most important answer is that there is no change proposed in the present law. If there are circumstances under the present law where more than one person can ask a trespasser to leave, that will be continued under the Bill as it stands. I do not know whether more than one can make that demand, but I imagine that, bearing in mind the vast complexity of private law, there must be circumstances in which more than one of the four could ask a trespasser to leave. That will continue to be the case. It is not an issue in this Bill.

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