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Lord Livsey of Talgarth: Perhaps I may reply to what the Minister said about my amendment. I will read very carefully what he has said and will consult on it with those who are genuinely concerned about this matter. One wonders whether it will be 200 square metres in the final version of the Bill and whether this may create a loophole where land for development is scarce. It could be the result of consecutive applications, although "careful scrutiny"to repeat the words used by the Ministerwould be given to each application. There is genuine concern among some commons associations that this is too large a chunk of land. However, I shall not press the amendment.
Lord Greaves: I am grateful to the Minister for his explanation. Like my noble friend, I shall read carefully what he said. We may want to pay further attention to the words "particular regard". The Minister told us that wherever possible such regard should be given and that there are safeguards save in exceptional circumstances, but I am not sure whether that is specified in the Bill. We shall scrutinise carefully what the Minister has said and, on that basis, I beg leave to withdraw the amendment.
The noble Duke said: In Amendment No. 61 we are talking about applications relating to land of over 200 square metres, as stipulated in the Bill. They must be included. We seek clarification on this.
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Do the Government envisage that regulations will seek parity in the size of the areas to be exchanged? Will any form of value judgment be involved, such that land of greater utility may be substituted even though it is smaller in area? I am thinking particularly of the rights of way improvement plans, under which some authorities will attempt to persuade landowners to dedicate certain landfor example, land on the inside of a hedge. Such a donation might be balanced by an opportunity to deregister another footpath or some common land elsewhere. I beg to move.
Lord Greaves: I have tabled Amendment No. 67, which is included in this group. It is similar to the amendment just moved by the noble Duke. My amendment probes a little further along the lines of his amendment. I suggest that the question should not be just whether the land should be no less in area but whether it is,
The noble Duke referred to the question of equivalent utility; I would talk about equivalent quality or equivalent type. Those are matters that we should press the Minister on and, like the noble Duke, I look forward to his comments.
Lord Bach: The noble Duke's amendment provides that any area of replacement land should be the same size or larger than the release land. It is a probing amendment to see what our view is of that proposition.
We do not think that the discretion of the Secretary of State to grant an order should necessarily be limited in that way. In the vast majority of cases in which the area of release land is over 200 square metres, it will be necessary to provide an equal area of replacement land. However, we do not want to rule out in the real world the possibility that a smaller area of replacement land could be offered in circumstances where the replacement land is of better quality than the release landthat is, better for the exercise of common rights or public access or for any other reason. For example, the release land may be inaccessible and remote for the purposes of recreation, while the replacement land may be on the doorstep of the community and previously unavailable for public use. It would be wrong to turn down an application in such circumstances solely because the replacement land was not of an equal size to the release land.
The noble Duke mentioned rights of way improvement plans. We do not think that the deregistration of common land could be a proper matter for inclusion in a rights of way improvement plan about improving access to the countryside not removing common land from registers.
The noble Lord, Lord Greaves, spoke to his amendment. He will, I think, have understood from what I have just said exactly what our argument is. It would be wrong to constrict ourselves by saying that in no circumstances should there be a smaller amount of land as replacement land.
The Duke of Montrose: I thank the Minister for his reply. From it, one thing that we can determine is the
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fact that if the land is of a lesser value it should not be smaller than the amount that is being taken. I shall read what the Minister has said and I beg leave to withdraw the amendment.
The Deputy Chairman of Committees: I advise the Committee that, if Amendment No. 63 is agreed to, I will not be able to call Amendments Nos. 64, 65, 66 and 67. If Amendment No. 64 is agreed to, I will not be able to call Amendments Nos. 65 or 66. If Amendment No. 68 is agreed to, I will not be able to call Amendments Nos. 69, 70 and 71.
"(6) The interests of right holders must take priority where exchange takes place.
(6A) Where the exchange of contiguous land to existing common land is deregistered the interests of common right holders will be a primary consideration.
(6B) In determining the application, the appropriate national authority shall also have regard to
(a) the interests of the neighbourhood;
(b) the public interest;
(c) any other matter considered to be relevant."
because deregistration or exchange could seriously disadvantage common right holders and even cause a sheep enterprise to become uneconomic, for example. Subsection (6A) would ensure that in deregistration and subsection (6B) contains the original paragraphs (a), (b) and (c).
Lord Williams of Elvel: It might be for the convenience of the Committee if I spoke to Amendments Nos. 64 and 68 in my name and in the same group as the amendments proposed by the noble Lord, Lord Livsey. We are dealing here with deregistration, which is a very important subject not least because with regard to nature conservation and the preservation of the landscape, one interesting thing about the foot and mouth outbreak in mid-Wales was that when sheep could no longer be moved about, on the common land near me we had wild flowers in abundance and birds all over the place. When the sheep came back in after the foot and mouth outbreak all the wild flowers and birds went again. I am afraid that that is a function of sheep farming on a common. But I shall come to the question of nature conservation later.
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My particular point on Amendment No. 64 again concerns the interests of the neighbourhood. Since we do not know what the neighbourhood is, it is rather difficult to say what the interests of the neighbourhood might be and how they should be tested on deregistration. In addition, under paragraph (d), which adds,
Can I bowl my noble friend rather a fast ball? I have not raised this matter up to now, but could he tell menot necessarily today but I shall put it on the recordover the course of time how far the National Assembly for Wales will be bound by ministerial statements made in this House on this legislation? As I say, I do not seek an immediate response, but I should like that put on the record because the appropriate national authority in the case of Wales is going to be the National Assembly. My noble friend can give all sorts of assurances, but it is perfectly possible, as I understand it, that the National Assembly may take a different view. Given Pepper v Hart, and since my noble friend is a lawyer and understands ministerial clarification in this Parliament, I should be grateful for his view on how far that would bind the National Assembly for Wales.
Having bowled that fast ball, let me bowl a rather slower one. These are all probing amendments and we are not trying to force any issue. Regarding Amendment No. 68, will my noble friend indicate which of the following matters,
take priority? Will they all be equal? If the public, for example, tramples over the land and does not protect nature, which of those takes priority? I do not wish to go on too much, but those are serious concerns that I am sure my noble friend will wish to address.
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