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Lord Bach: My Lords, I am grateful to noble Lords who have spoken. Perhaps I may deal first with Amendment No. 50, which I know is a probing amendment. We believe that it is appropriate to maintain the exemption and I shall try to explain why. We must focus on what the controls on works are intended to achieve. Clause 38 is concerned with works that prevent or impede access to the common and which, as a consequence, might adversely affect the common and the purpose for which the land is used. Clause 38 is not a means of introducing a consent requirement for works which some may consider anti-social or inappropriate. If the existing consent regime for such works is considered to be deficient, that does not mean that it would be appropriate to introduce controls via Clause 38, which apply to a relatively small proportion of the land in the country. About 4 per cent of the land surface of England and Wales is made up of common land, and so these controls would not apply to 96 per cent of the land and would not offer protection from any dangers that there might be.
The exemption is sensible to deal with the frequent need to erect telephone lines, junction boxes and the like on common land to provide a service to
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neighbouring properties. We know that the exemption is longstanding; it has existed in respect of communications equipment for over 80 years and we are not aware of evidence that any problems on commons have arisen as a result. It is consistent with our aim and, I suspect, the aim of the House to help create the most dynamic and competitive communications industry in the world which ensures universal access to a choice of diverse services of the highest quality and that citizens and consumers are protected. That objective needs to be balanced in an appropriate manner with others, such as limiting environmental impact and addressing public concern over new developments. However, our judgment is that controls within the planning system are the best way of achieving that.
The noble Duke asked, pertinently, whether these matters were covered by planning law, too. The answer is that in certain circumstances—relating to phone masts, for example—consent under Clause 38 would not circumvent the need for planning controls. Consent would be needed under both, if appropriate. So the planning laws do not go out of the window automatically just because the works are covered by this Bill.
The noble Lord, Lord Greaves, has put me on my mettle regarding government Amendment No. 51. He asked why this matter is being moved to Schedule 3. The answer is, "Because it is absolutely a transitional amendment". The time for it would run out after a period and so the appropriate place for it in the Bill is in Schedule 3. The noble Lord will know that planning permission needs to be extended by time to allow completion of works. The justification for Amendment No. 51 is that it is only an extension of time; it will not allow extended planning permissions for any other purposes—for example, if the area covered by the works is also extended. The amendment would also enable existing permissions to be completed, and often the restoration of the land would be part of that process. So this is a tidying-up exercise in the sense that there is already an exemption from the requirement for consent to mineral workings which have planning permission at the time that the Bill becomes law. Amendment 51 has the effect of extending that slightly when existing permission is varied by extension of the time limit to which the permission is subject. We think that that is a fair way to proceed in this instance.
On Question, amendment agreed to.
Lord Bach moved Amendment No. 51:
On Question, amendment agreed to.
Lord Bach moved Amendments Nos. 53 and 54:
On Question, amendments agreed to.
Baroness Farrington of Ribbleton moved Amendment No. 55:
The noble Baroness said: My Lords, this is a minor, technical amendment to Clause 38(9) that would remove "arising", which we now consider to be an unnecessary word. It adds nothing to the meaning of this subsection and its removal does not change the meaning or effect of the subsection. I beg to move.
Baroness Byford: My Lords, I have two amendments in this group. Although I did not object to the Government removing the little word "arising", I did smile a little. I thought that if the little word "arising" could be taken out, perhaps the little word "material" could be put in elsewhere, but that is another matter.
I shall speak to Amendments Nos. 56 and 57. Amendment No. 56 is a probing amendment designed to discover whether the Government intend that this retrospective consent will apply only to works—
Lord Bach: My Lords, I am so sorry to interrupt the noble Baroness but we thought that Amendment No. 55 had been degrouped from Amendments Nos. 56 and 57. I think that the noble Baroness will be able to move her amendments very shortly.
On Question, amendment agreed to.
Baroness Byford moved Amendment No. 56:
The noble Baroness said: My goodness, I am too keen, my Lords. I apologise; I was working from a previous groupings list and that is my fault. In moving Amendment No. 56, I shall speak also to Amendment No. 57, which is grouped with it.
As I said, this is a probing amendment designed to discover whether the Government intend that this retrospective consent will apply only to works that have been commenced or completed by now. As I read it, the wording in the Bill does not make that clear and could be construed as meaning that anyone may, at any time in the future, begin restricted works and then apply for consent. I am sure that that is not what is intended but I am seeking clarification. A cut-off date of 28 June 2005 would mean that anything which had not been commenced by then would have to go down the consent route. It would also mean that there would be no sudden rush of activity to try to avoid having to apply. I am simply seeking clarification.
Amendment No. 57 would insert an additional provision intended to prevent application to the court by members of the public in respect of works carried out before the Bill was laid. It seems to us particularly unfair for retrospective effect to be granted at the behest of anyone who is offended. However, the amendment would widen the power of particular
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authorities to bring proceedings by including all "relevant authorities" and not just the local authorities described in Section 194 of the Law of Property Act 1925. I beg to move.
Earl Peel: My Lords, I support my noble friend's amendments—particularly Amendment No. 57. My noble friend talked about retrospective cases that might be brought by the relevant authorities. Of course, that could be extended to the present. It is now extended to include the general public, and we go back to the whole question of vexatious legislation. I certainly do not wish to go through that again, but I suggest to your Lordships that if anything seriously untoward had taken place before the date mentioned in my noble friend's amendment—that is, June 2005—surely the relevant authorities would already have had the opportunity to take action. In Committee, when we debated the possibility of reopening the whole question of registers, the Minister said, "Let sleeping dogs lie". I suggest to the Minister that perhaps he might take a similar approach in this instance.
I feel strongly that every effort should be made to reduce conflict between the access providers and the access users, as my noble friend said when she spoke to other amendments. I think that this would be a small but important example where that concept could be implemented and so I very much hope that the Minister can take a magnanimous view in this case.
Lord Bach: My Lords, Amendment No. 56 would remove the provisions that enable a national authority to consider an application for consent to undertake works under Clause 38 in circumstances where the works have been started or completed. The noble Duke, the Duke of Montrose, tabled an equivalent amendment in Committee. I gave an explanation then as to why we did not think it appropriate. That obviously did not satisfy him and his colleagues and I hope that I can do a little better this time.
In our view, when works have been undertaken without the consent of the national authority under Clause 38, a sensible first step is to enable an application for such consent to be made. If no such application is submitted or if consent is refused, enforcement action can follow. This is not a transitional provision. Works undertaken while Section 194 was still in force could be the subject of an application under Clause 38 and that would then make them lawful.
I should add that this provision does not take away any power that a landowner has to seek the removal of works undertaken without his consent, or any power that commoners have to seek the removal of works that adversely affect the exercise of their rights. The ability to consider a retrospective application relates only to the provisions of Clause 38.
My officials currently accept applications in respect of works already started or completed, and I do not believe that that has caused any problems; nor am I aware that a specific power to accept a retrospective
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application is required but, to put the matter beyond doubt, we have included one in the Bill. I hope that that explains more clearly why we have taken the attitude that we have.
I hope that the noble Baroness will be pleased with my attitude to her Amendment No. 57, which relates to the provisions in the Bill that amend Section 194 so that after the commencement of this Act any person would be able to take enforcement action against unlawful works undertaken while Section 194 was in force.
We understand the point that the noble Baroness is making. We do not think that the enforcement provisions that we propose, and in particular the amendment to Section 194, is a retrospective provision in the true sense of the phrase, but we understand her concern. We are perhaps slightly moving the goalposts in respect of unlawful works undertaken before the Bill comes into force. Because of the way in which the noble Baroness and the noble Earl, Lord Peel, made their point, I am prepared to take this matter away for further consideration to see whether it is possible to come up with a suitable government amendment at Third Reading, but I make no promises.
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