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The Chairman of Committees: My Lords, I apologise to your Lordships; it is I who have made a mistake on this occasion. I referred to two errors which we shall no doubt come to in due course. Amendment No. 1A, as proposed by the noble Baroness, Lady Miller of Chilthorne Domer, states:
Lord Whitty: My Lords, these amendments would require the countryside bodies to consult with local access forums before appointing a contractor. That is a significant inhibition on the Countryside Agency in carrying out this work. As we shall discover when we discuss the relevant amendments, local access forums are regarded as an important factor in assessing how we establish and manage access. However, we do not believe that they are appropriate bodies to consult in the context we are discussing.
The countryside bodies are required to produce maps of all registered common land and open country. They will be required by regulations to consult widely on draft maps, consider representations, then produce provisional maps for confirmation or amendment following the hearing of any appeals by the Secretary of State or the National Assembly for Wales.
That is a considerable task. We cannot expect the countryside bodies to use directly employed staff in all contexts. The in-house staff will not have all of the technical expertise that is required. When specialist staff can be contracted to carry out certain work it would not be sensible for the countryside bodies to employ specialists for a limited period and then dispense with them. The bodies involved have already taken steps to identify, and where necessary contract, organisations and individuals with the right skills to do this work. As we discussed earlier, they are working closely with the Ordnance Survey to ensure high technical standards. In mapping and other areas they will need expertise which complements their in-house expertise. However, oversight and responsibility for all this work will rest with the countryside bodies. Their staff will set the parameters, oversee the operation of the contracts and will have a direct and vital role in discussions with the interested parties during the process and afterwards. They take extremely seriously the prospect of carrying out their functions. They are determined to carry out that work in a professional and transparent manner.
The amendments imply that we would employ particular bodies for particular mapping purposes. However, it is more likely that we would employ under contract particular organisations or personnel for their general expertise. It would therefore be difficult to engage a significant number of local access forums in the contractual arrangements, as the amendments would require, because they would be organised on a national or regional basis rather than on an area or county basis. There may be occasions where that is not the case but in those situations the countryside bodies' own staff would engage in full consultation with the relevant local access forums.
As regards guidance to the Countryside Agency, I think I have indicated that it will have tight overall management of this work. We shall not give specific guidance to the Countryside Agency on contracting out. However, the provisions in regulations--I refer, in particular, to Clause 11 which concerns regulations relating to maps--will set out in detail the requirements for consultation and appeal, which the noble Baroness was particularly worried about, and will allow us to concentrate on achieving the right outcomes without interfering in the way in which the Countryside Agency mobilises the inputs, whether in terms of direct staff or separate contracted companies or individuals. Therefore the fact that that body will be in charge of the procedure will safeguard the appeals process. What we are really talking about here is deploying expertise.
As I say, the Countryside Agency will be in charge of the process. It will consult with local interest groups and local access forums. Most of the expertise will probably consist of contracted specialists. I believe that the amendments are inappropriate. I hope that the noble Baroness will not press them.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his full reply. He mentioned the spirit of the approach that the Government will adopt towards the agency. That is helpful. I beg leave to withdraw the amendment.
The first aim of the Bill, as stated in Clause 1(1)(a), is to give access to "open country". The question of what constitutes open country is conclusively resolved and defined in Clause 1(2) which states that "'open country' means"--that is therefore exclusive--
For the purposes of the point I am making I shall concentrate on downs. By that definition, any land which appears to consist mainly of down is open country. Thus, if one has an area of land which is undoubtedly mainly down, it is within the definition of open country and therefore becomes access land even if it is not open at all. That point became apparent on the first day of Committee in this Chamber when there was discussion of a technical nature as to what constituted a down. The noble Lord, Lord Whitty, suggested that that probably included parts of the Cotswolds, the Yorkshire Wolds and other such places. It then became apparent to me that if those areas of countryside are considered downs, they are within the primary definition of open country, whether or not they are open. No one, not even the Countryside Commission, can say, "They are down but they are not open and therefore we shall not treat them as open country".
The definition states that all land which is down is open country and therefore under Clause 4(1) it must be mapped, unless, of course, it is of a de minimis quantity. That cannot be what was intended. I give an analogy. Let us suppose that an Act protects ancient dwellings but states that an ancient dwelling means any building constructed before 1600. Then any such building is included, whether or not it is a dwelling. One has precisely the same situation here in that any down is included, whether or not it is open. Therefore I wish the definition to state that open country constitutes land which is open and which appears to be wholly or predominantly heath or down.
Lord Glentoran: My Lords, I support the amendment. It is the first time that I have heard the noble Viscount's arguments. They sound eminently sensible and help with the description over which we struggled for such a long time in Committee.
Baroness Hamwee: My Lords, can the Minister confirm that in construing the definition of "open country", which appears to the appropriate body to consist of the various types of land described, that body must apply the usual Wednesbury principle? Bearing that in mind, the definition of open country is used to define access land and has to be read alongside the schedule of exceptions from open land. One has to marry the definitions together. Nevertheless, the point is already covered.
Lord Whitty: My Lords, the noble Viscount refers to this as a drafting amendment. Taken literally, it is closer to a wrecking amendment. I am not sure that that is the noble Viscount's intention but in practice that would be the effect. It would mean that enclosed land, typically fields, could not be mapped as open country for the purposes of the Bill. As the noble Viscount hinted, the effect would be to exclude most downland and significant areas of moor and heath from the definition of access land.
As the noble Baroness, Lady Hamwee, said, that does not mean that everything on downland would be treated as open country. The restrictions have to be read together with what appears to be mountain, moor, heath and down. Therefore, there would be substantial exceptions and restrictions on the downlands referred to, principally in relation to arable land. Enclosed arable land would be automatically excluded.
We thought that we had made clear that there is nothing in the Bill which restricts landowners from doing what they like with their land. Therefore, if they use the land for arable farming, even though otherwise it might fall within the definition of downland, it is excluded. If they wish to erect fences or walls around the field, they are entitled to do so but in certain circumstances that will still be open country. Providing a barrier, a wall, which may be there already or erected, will not exclude it from being access land.
Very little of the downland commons which range across the tops of the chalk ridges in south-east England remain common land, having succumbed to enclosure in the 18th and 19th centuries. Much, if not all, has been enclosed to permit the management of stock. Such enclosure need not affect the characteristics of downland, typified by rolling hills, steep slopes, dry valleys and short rich turf. Those areas will be identified as downland. But if they are used for purposes which lead to an exclusion or restriction, they will not be treated as access land.
It is also not axiomatic that moor and heath, for example, are unenclosed. Moorland has been enclosed or allotted by landowners at various times in the past 200 years. The changing economics of agriculture, and the poor productivity of the soil, has caused some of that land to resume the characteristics of unimproved moorland.
Therefore we do not accept the principle of the amendment. In all the categories of mountain, moor, heath and down there may be enclosed land which it is appropriate to treat as access land. Yes, countryside bodies will need to act reasonably when they apply their discretion. They will need to review the definitions and to have careful regard to the exclusions and restrictions in the other clauses of the Bill. But they will not be expected to exclude excepted land from maps unless they believe that to be not predominantly open country. Therefore they will identify mountain, moor, heath and down and then consider whether that land is being used for purposes which are inappropriate for treatment as access land and covered by the exceptions in the Bill.
The implication of the amendment is that all enclosed land should be excluded from the definition. That is a substantial undermining of the principle of the Bill and would cause grave difficulties in delivering the main purpose of the Bill
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