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Baroness Byford moved Amendment No. 292:


The noble Baroness said: In moving the amendment, I speak also to Amendment No. 293.

Amendment No. 292 deals with the regulations governing closures of common land. Clause 30(1)(e) provides for the regulations to restrict applications from commoners for closures of land management or the avoidance of risk of fire or danger (Clauses 22 and 23) where the landed interest is that of a commoner. The inclusion of such a provision might well restrict the ability of commoners to close land. That would interfere with their legitimate land management needs.

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Each commoner may have his own hefted flock, for which he will require a closure. The Government have stressed that the right of access should not unduly impose on land management interests, but subsection (1)(e) risks doing so for commoners. The rights of a commoner trying to make a living on access land should not take second place to those of walkers who use the access land. By deleting the paragraph, the amendment would result in commoners being treated in the same way as any other interest in the land. An alternative approach would be to provide that any regulations made under that paragraph must not act to the detriment of the use or management of the land by commoners.

Amendment No. 293 would make notification of closures the responsibility of the relevant authorities, not of owners. Subsection (1)(i) provides that regulations may make provision as to the steps to be taken by persons interested in the land, relevant authorities and the countryside bodies in informing the public about restrictions or closures. It is surprising that owners might be expected to take any steps to inform the public about restrictions and closures. They have not asked for the new right. The Countryside Agency, the Countryside Council for Wales and the national parks authorities should undertake to notify users of closures, as is currently the case in the Peak District, for example.

Requiring owners or occupiers to notify closures or restrictions to the public will necessarily involve costs in placing notices on the site or advertisements in the papers, as well as in the time lost to their business. If numerous closures are needed every year, those costs could be substantial and should be borne by the public purse rather than by the owners.

The Government must remember that any individual required to expend money for the benefit of the public should receive compensation for that expenditure. I believe that the Government have said that that will be the case. If not, there could be a breach of the Human Rights Act 1998. There is no compensation provision in the Bill. The amendment would remove the possibility of regulations being made to require owners to inform the public about restrictions and closures. That duty would then lie solely with the relevant authorities. I beg to move.

Lord McIntosh of Haringey: Subsection (1)(e) was introduced by the Government on Report in another place. It was not in the Bill originally. We introduced it to address two problems. The first was the possibility that on some areas of common land grazed by many commoners, it would be desirable to require the commoners, or a number of them, to apply jointly for any direction to restrict or exclude access. A joint application would demonstrate that there was a real need for a direction and that the commoners were prepared to enforce any direction as a body.

It would be absurd if the relevant authorities were required--as they would be without the paragraph--to consider separate applications from, say, 100 commoners grazing on a stretch of moor, each of which sought different restrictions or exclusions for

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different periods. An individual commoner may still seek a direction in respect of the land on which his flock is hefted, but it would impracticable to apply and enforce directions in respect of such units. It is far better that commoners should agree among themselves what restrictions, if any, are required, and submit a joint application representing all or a majority of them.

The second problem is that regulations may require confirmation that the applicants have the power to enforce any direction given, by demonstrating, for example, that the commoners have the right to exclude trespassers from the land.

The effect of a direction is to remove or restrict the public right of access over land. Thus, the public will lose the statutory right if they are in breach of the direction. However, it is quite possible that the rights of commoners on access land may not extend to excluding trespassers. That is normally the right of the owner or occupier and their agents.

Therefore, when regulations are framed on applications from commoners, it may be desirable to ensure that the applicants will have some effective means of enforcing a direction; for example, that the landowner has authorised the commoners to act as his agents in excluding trespassers or that the access authority, using its wardens, has agreed to enforce the direction with the approval of the landowner. That was a serious addition to the Bill at Report stage in another place. It was added for good reasons and I hope that the noble Baroness, Lady Byford, will not seek to take it out.

Amendment No. 293 would remove the--

Earl Peel: Before the noble Lord moves on, I wonder whether I may ask him a question. I believe that what he said about a joint application is absolutely right; otherwise, it could in certain circumstances get out of hand. However, we must not forget that, in addition to grazing rights, other rights exist on commons. There are rights of turbary, rights of piscary and rights of estovers, which sometimes are held by people who do not have the grazing rights. I wonder whether those other rights-holders on commons would have to be approached if the joint application was submitted.

Lord McIntosh of Haringey: If it affected the issue of access, yes, they would have to be approached because the purpose of paragraph (e) is that we are able to frame amendments which provide exactly for that. If, on the other hand, those other rights did not affect access to the land, they would not have to be considered. However, that is the reason for putting the matter into regulations rather than trying to frame it on the face of the Bill.

Amendment No. 293 relates to Clause 30(1)(i), which allows the Secretary of State and the National Assembly for Wales to make regulations which prescribe the steps to be taken by various bodies to inform the public about the exclusion or restriction of access under Chapter II. It makes clear that such steps

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could include the display of notices on the affected land. The amendment would remove the power for the regulations to prescribe the steps.

Where a landowner or anyone else with an interest wishes to exclude or restrict access under the provisions in Chapter II, it will be in his own interest that such restrictions are brought home to the public. We have already described the steps which the Countryside Agency is taking to ensure that information about restrictions is made widely available to the public, including plans for an Internet website and a telephone hotline. However, there will also be a place for restrictions to be publicised at a local level. That could be achieved by displaying notices about the effect of restrictions at principal points of access. Sometimes it may be enough for the landowner or his agents simply to inform anyone who wanders on to the land of the restrictions in force.

In some areas, access authorities, working through the warden service, may offer assistance to landowners in providing local publicity. We have already undertaken in debate on Amendment No. 223 to consider an amendment to Clause 18 which would allow wardens to be appointed for the specific purpose of enforcing exclusions and restrictions under Chapter II.

In other areas it may be appropriate for the landowner to arrange for notices to be posted or issued. Where the restrictions in force relate sensibly to operational requirements, that should not be an excessive burden, as there will be a need for the landowner to have a presence on the land for the purposes for which the restrictions have been sought. Regulations will be able to prescribe the form of any notices displayed on the land, as well as any requirements for displaying them. That will help to ensure clarity and consistency about the nature of the restrictions in force.

Of course, the regulations should not impose detailed, burdensome requirements about the number and location of the notices. It will be in the interests of the owner to ensure that sufficient notices are in place, but it may be sensible if regulations prescribe the form of those notices.

However, we do not agree that regulations should not impose any requirements on landowners. It would be absurd if there were a requirement on some other party, presumably the warden service, to publicise the closure of any parcels of land on every occasion that the landowner chose to exercise his discretion to close under Clause 21. As we have seen, potentially one landowner could choose to close each of 100 separate parcels of land on 28 days in each year for any reason. Publicising these closures would keep one warden employed full time on entirely unproductive work.

If landowners choose to exercise their discretion in this way, it is right that the primary responsibility for informing the public should rest with them. In cases where there is a potential risk to public safety it may be entirely proper for the warden service to help them and I would expect access authorities to be positive about any requests for help. We think that, while it will be

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important to avoid any undue burden on landowners, the powers for regulations to prescribe a role for landowners are justified and should remain in the Bill.

I turn to Amendment No 294.


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