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Lord Livsey of Talgarth: My Lords, the Minister has given a detailed reply. I understand the different circumstances in different parts of the Bill that relate to different aspects of access and, in particular, how the activities on common land that we have debated in previous amendments are relevant. I have made a brave attempt to include the amendment in the Bill. I hope that what the Minister has said very carefully on access will be given prominence in the regulations. That might assist people to understand why access is being treated in that way.
Clause 59 of the amended Bill, the Short Title, states:
I was surprised, which is why I quote it. I thought that it might be "2006". Without more ado, I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Schedule 1 [Rectification of mistakes etc under the 1965 Act]:
Lord Bach moved Amendment No. 75:
The noble Lord said: My Lords, this is the last group of amendments on Report. It includes government Amendments Nos. 75 to 78 and Amendment No. 79, in the name of the noble Baroness, Lady Byford. Unusually, I shall deal with that amendment, in
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passing at least, before the noble Baroness has spoken to it, because, as I will explain in a moment, we are happy to consider it.
Government Amendments Nos. 75 and 76 respond to amendments that the noble Lord, Lord Greaves, tabled in Grand Committee and which we agreed to consider. They relate to the provision in Schedule 1(2) that enables application for the registration of waste land of the manor. Such applications must relate to land provisionally registered as common land under Section 4 of the 1965 Act but where the registration was cancelled in certain circumstances.
These amendmentsAmendment No. 75 is simply a paving amendmentprovide that application under paragraph 2 will be possible in one new class of case. That is where the registration was referred to the Commons Commissionersthey were here at the start of Report and are here in the last groupand the commissioner concluded that the land was not subject to rights of common but failed to go on to consider whether the land qualified to be registered as waste land of the manor.
In our viewand the courts lend that view some supportthe commissioner should have considered the question of status as waste land of the manor regardless of whether or not it was argued before him. That is because the commissioner was not simply deciding a case between the parties to an application but determining a matter of public interest. So this amendment will enable such cases to be reviewed where application is brought forward under paragraph 2 and where the land continues to have the status of waste land of the manor at the time of application.
Amendments Nos. 77 and 78 address the other side of the coin in Schedule 1. Paragraphs 4 and 5 of that schedule deal with deregistering wrongly registered common land and town or village greens. The amendments respond to a concern raised by the noble Earl, Lord Peel, about the criteria for application under those paragraphs.
As the Bill stands, an application could not be made in respect of any land where the original registration was referred to the Commons Commissioner for determination. That is because the commissioner was the proper tribunal to sort out any disputes about registration and we do not intend to reopen such matters, which were thrashed out at the time. But the noble Earl told us that there was a possibility that paragraphs 4(2)(b) and 5(2)(b) could be read as meaning that an application could not be made even where the commissioner was required only to determine the rights exercisable over the land. Where there was no objection to the registration of the land itself, the commissioner was unable to remove the land from the register, even if it was patently obvious that the land was not common land. We believe that the Bill already has that effect but are happy to ensure that the matter is put beyond reasonable doubt.
Amendment No. 79 reprises an amendment tabled in Committee by the noble Baroness, Lady Byford. I apologise to the noble Baroness that we have not
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addressed the issue in our amendments or in correspondence. We have looked at the concerns briefly raised by the noble Baroness in Committee and have some residual doubt about whether the wording of paragraph 5(3)(a) ensures that the physical impediment must have been present for the whole 20-year period. That is why we felt unable to respond to her amendment in Grand Committee. We are continuing to consider whether amendment is necessary but do not believe that Amendment No. 79 fits the bill. Should an amendment be required, we will aim to table one at Third Reading. I beg to move.
Baroness Byford: My Lords, I am grateful to the Minister for his comments on Amendment No. 79, which is grouped with these amendments. He indicated in Committee that he would come back on the issue but, unfortunately, sometimes these matters slip through the net. We look forward to hearing whether he thinks the amendment is necessary. If he does not think it is needed we may return to it. We have plenty of time before Third Reading, and I hope that the Minister will respond to our concerns.
On behalf of my noble friend Lord Peel I thank the Minister for responding to issues that he raised in Committee. I know that he is grateful to the Government for addressing those matters.
As these are the last amendmentsI shall obviously not be moving Amendment No. 80I thank both Ministers for how they have conducted the Bill through Report stage.
Lord Greaves: My Lords, before my noble friend rises to echo those comments, perhaps I may add my support to them and thank the Minister for Amendment No. 76, which addresses one of the points on waste land of the manor that we raised in Grand Committee. It is a useful amendment.
Lord Livsey of Talgarth: My Lords, I thank both Ministers for how they have taken the Bill through so far. We have won some, drawn some and lost some, which happens with a Bill of this kind. I am fascinated that in the last group of amendments the commons commissioners are mentioned, albeit in a historical sense, but they were operative at the time of the registration period and have been so up until now. Certainly there is food for thought there. I thank the Ministers for their co-operation.
Lord Bach: My Lords, before the Question is put, I thank noble Lords for their kind comments about my noble friend and me. I reciprocate those comments to the Benches opposite. We have done well to complete the Report stage in the time that we have.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton moved Amendments Nos. 76 to 78:
"(3A) The circumstances in this sub-paragraph are that
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(a) the provisional registration was referred to a Commons Commissioner under section 5 of the 1965 Act;
(b) the Commissioner determined that the land was not subject to rights of common and for that reason refused to confirm the provisional registration; and
(c) the Commissioner did not consider whether the land was waste land of a manor."
Page 33, line 32, after "registration" insert "of the land as common land"
Page 34, line 12, after "registration" insert "of the land as a town or village green"
On Question, amendments agreed to.
[Amendment No. 79 not moved.]
Schedule 2 [Registration: transitional provision]:
[Amendment No. 80 not moved.]
Schedule 3 [Works: supplementary amendments]:
Baroness Farrington of Ribbleton moved Amendments Nos. 81 and 82:
"(c) land not falling within paragraph (a) or (b) which is in the New Forest and is subject to rights of common"
Page 39, line 8, at end insert
"7 The prohibition in section 38(1) does not apply to works carried out in connection with the taking or working of minerals if
(a) the works were granted planning permission under any enactment before the commencement of section 38;
(b) the works are carried out in accordance with that planning permission in the period allowed for the works to be carried out (subject to any extension of time granted before or after the commencement of that section)."
On Question, amendments agreed to.
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