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Lord Glentoran moved Amendment No. 73:


Page 2, line 27, after ("2") insert (", save where such restrictions are in conflict with existing public rights,").

The noble Lord said: In moving Amendment No. 73, I wish to speak also to Amendments Nos. 74 and 205. The group of amendments concerns urban common land. I hope the Minister will find them to be helpful amendments. Amendment No. 73 seeks to tidy up some minor conflicts. It follows Amendment No. 66, which was debated on the previous Committee day. The amendment makes it absolutely clear that the provisions of the Bill are in addition to all pre-existing rights of access, agreements about land use and access for local clubs, activity groups and the like.

Amendment No. 74 seeks to clarify the Bill. It ensures that this part of the Bill is consistent with the terminology of the rest of the Bill and is thus capable of cross-referencing without the danger of a legal lacuna being discovered once the Bill becomes law. Noble Lords will know that that is not my language.

Amendment No. 205 is designed to apply the provisions of the Bill to urban commons in so far as they only relate to walkers. These are commons which at the time of the Law of Property Act 1925 lay within the boundaries of urban district councils. Somewhat bizarrely, substantial areas of common land in the Lake District and Snowdonia are urban commons. There is already a right of access on them for walkers, and also, it is presumed, for horses.

We think that it is important that the management regime which can be applied to walkers on all other common land should apply equally to walkers on urban commons. In many cases urban commons and other commons, or other mountain and moor, intermingle or abut each other.

It would be strange if such areas, which are often used in the same way as adjacent land, or with similar conservation or heritage value, could not benefit from the same provisions for closing and restricting access as adjacent land. It would also be illogical and confusing to have one set of rules on one extensive piece of moorland and another set of rules on an equally extensive piece of moorland next door. One can think of the confusion for owners and walkers and--not least--the problems for wardens in policing the new right in such areas.

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The exclusion of Section 193 commons from the Bill is all the more surprising, given the fact that the Law of Property Act 1925 expressly provides that the provisions relating to access to the land involved can be overridden by subsequent statutes relating to access. It states that,


    "such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority".

We invite the Government to explain why Section 193 commons should not also be brought within the scope of the Bill, at least in so far as concerns access for walkers. There is no desire to remove any higher rights--for example, access on horses. The amendment makes specific provision to safeguard such rights while bringing access to walkers within the scope of the Bill.

Amendment No. 205 involves one amendment to Clause 2 and one amendment to Clause 15. So far as concerns walkers, that would bring urban commons within the scope of the Bill by removing the current exemption for them under Clause 15. The general restrictions listed in Schedule 2, and the closure regime and so on under Chapter II, could then be applied to the land, save where they are in conflict with the existing public rights--for example, to ride horses. Accordingly, walkers would be subject to all the restrictions applying on other open country--a modern management regime to tackle modern problems--without interfering with the implied rights of horse-riders on urban commons.

A good deal of that argument has already come before the Committee this afternoon in a different context. We wish to avoid having different regimes for different areas of land, especially when the parcels of land abut one another or they lead into each other. I beg to move.

Lord Jopling: When the Minister comes to reply, I hope he will expand a little on the comments made by my noble friend Lord Glentoran. The reason I should like him to expand on that is that the remarks of my noble friend took me back a good many years to the passage of the Commons Registration Act 1965. I was heavily involved in that legislation because my former constituency in another place--the historic county of Westmorland--contained more common land than any other constituency in the country.

I should like clarification on the matter of commons because my recollection is that in those days there were rather strange arrangements whereby in two boroughs in my old constituency--namely, Windermere and Ambleside--there were urban district councils rather than rural district councils. It was for that reason that there was in Windermere Urban District Council a large amount of common land. In the area based on Ambleside, which if I recall was called the Lakes Urban District Council, there were a large number of urban commons. Can the Minister confirm that my recollection about that is correct?

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We are not talking about small parcels of land; we are talking about huge parcels of land. To anyone rowing or sailing a boat on Lake Windermere and looking north or east, more or less everything he sees consists of what used to be common land attached to Windermere Urban District Council and the Lakes Urban District Council. I hope the Minister will make clear in his winding-up speech that we are not talking about anything comparable to urban parks. We are talking about vast tracts of open land in the Lake District in particular.

As I recall, there were other urban district councils in the Lake District. I cannot recall what and where they were. All I know is that those were the only two in my constituency.

Lord McIntosh of Haringey: Perhaps I may begin by confirming that the noble Lord, Lord Jopling, is entirely right. His memory goes back to the 1965 Act. I wish it had gone back to the 1925 Act. If it had, and if he had been a member of the government at the time, he would recall that the government chickened out during the passage of that Act. It had been intended that the Law of Property Act should apply to all commons, whether urban or rural. But the difficulty for the Government in 1925 was such that they left it at urban commons and did not proceed to the rest of it. For the past 75 years we have lived with the consequences. In response to the amendments, I shall show that the consequences have not been all that dire. However, the noble Lord, Lord Jopling, is right. "Urban commons" is an Orwellian title. It applies to the common land within urban district councils, which includes enormous tracts of open land, particularly in the Lake District and in Snowdonia.

I admire the noble Lord, Lord Glentoran, and his advisers for their tidy minds, but I really do not think that we need to be quite as tidy in dealing with this part of the Bill. He is right to say that access land under the Bill excludes excepted land, which we have debated at some length, and also those types of land referred to in Clause 15(1) of the Bill, the first of which, which would be omitted by Amendment No. 205, is urban commons under Section 193 of the Law of Property Act 1925. Under the 1925 Act, the urban commons have statutory access rights. Although they vary, they are in general less restrictive than the access rights provided under the Bill. They are subject to reduced opportunities for closure and provide wider rights of recreation than the more modest right of access afforded by the Bill. For example, they generally include access for horse riders. Amendment No. 205 would bring the management of such land within the scope of Chapter II of the Bill, so it would be the Bill's provision for access that would apply.

I see the argument for uniformity, but land which has been open for three-quarters of a century would become subject to widespread closure or restriction for the first time in the absence of any evidence that the existing access regimes have caused problems for land owners or others interested in the land. So we see no reason to replace themwith the more extensive system of restriction and closure set out in the Bill. Were we

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to follow that approach, there would be considerable difficulty in providing satisfactory arrangements for existing rights to co-exist with the new statutory right and in providing for the management of higher rights in addition to the rights of walkers. If landlords of urban commons wish to comply with the provisions of the Bill, they can do so. Much of the access land under Section 193 of the 1925 Act is subject to revocable deeds of dedication, so owners who wish to adopt the access regime set out in the Bill may do so.

There is one exception to my argument against uniformity and greater restriction. I refer to conservation. Conservationists have told us that the 1925 Act did not allow for access to Section 193 commons to be restricted in the interests of nature conservation. We have provided in Schedule 4 for an amendment of Section 193(1) of the 1925 Act so that limitations or conditions may be imposed by the Secretary of State or the National Assembly for Wales for just that purpose.

The mapping process will ensure that walkers have certainty that, where land is shown on the map as open country or registered common land, then, subject to restrictions or exclusions in force under Chapter II, they will have a statutory right of access on foot. Those who wish to inquire more closely--this brings us back to our debate on the previous group of amendments--or perhaps who live locally, will be able to find out whether they have wider rights under an earlier enactment.

The amendment will do nothing to improve clarity or certainty for walkers but will only increase the likelihood that their rights will be diminished where access becomes excluded or restricted under Chapter II. Mr James Paice told the Committee considering the Bill in another place:


    "I certainly do not want existing rights extinguished".--[Official Report, Commons Standing Committee B, 4/4/00; col. 148.]

The amendments would do just that.

Amendment No. 74 makes a minor change which reflects a misunderstanding. The amendment attempts to make it clear that users should observe any exclusions as well as any restrictions. It is thought that there is a loophole. But Clause 2(2) provides that the right of access set out in subsection (1) is subject to the provisions of Chapter II. If access is excluded under Chapter II, the right of access will not apply. If the right of access cannot be exercised at all, the question of observing any limits cannot arise.


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