HL Deb 11 May 1989 vol 507 cc810-8

7.22 p.m.

Baroness Blatch

My Lords, I beg to move that this Bill be now read a second time. The House will be indebted to Mr. David Harris, Member of Parliament for St. Ives, who as long ago as 16th December 1986, in an Adjournment debate in another place, highlighted a deficiency in the common land Act 1965 and also to Mr. Tony Favell, Member of Parliament for Stockport, for introducing a Bill to deal with what can be described as an iniquitous situation affecting the basic rights of many individual citizens. It is due to the persistence of Mr. Harris and Mr. Favell and the tenacity of many individuals who have suffered as a result of the defect in the 1965 Act that this Bill. has arrived on the Floor of your Lordships' House.

It is important to state at the outset that this Bill in its rather limited form does not preclude or thwart any attempts by the Government to introduce a more comprehensive Bill dealing with common land. Indeed, there is considerable pressure building up for a Bill to be introduced as early as possible.

I am sure that this House would wish to recognise the work of the Countryside Commission which set up the common land forum which brought together interested bodies such as the Country Landowners' Association, the Open Spaces Society, the Ramblers' Association, and so on, to produce a report. The forum produced a report in 1986, which, although it deals with many controversial issues, will nevertheless prove invaluable to the Department of the Environment when drafting legislation. The

Government also produced a Green Paper in 1987 in which it was reported:

"The Government accepts the case for legislation based broadly on the common land forum's report and intends to introduce legislation at a suitable opportunity when parliamentary time permits".

A review of the law on common lands is a Conservative manifesto commitment and I know that a good deal of preparatory work has been done by the department. However, it would be helpful if my noble friend in replying would say a word or two about progress on the matter. Even in the Bill's limited form I am aware of the difficulties of getting the wording right. It is not easy to achieve a balance that, on the one hand, gives due rights back to the individual citizen and, on the other, preserves rights of access to common lands for all people.

The reason for the Bill is that the 1965 common land Act proved defective. Under that Act between 1967 and 1970 any citizen could provisionally register any piece of land which he or she felt should be common land. The county councils were given responsibility for registration and the only requirement on those councils to inform under the Act was that they advertise in the press by way of official notice.

Many applications at that time for common land status included dwellings. Very often, when the official notice appeared, usually in a little-read part of a local newspaper, only plot number were used to describe a dwelling. This made it even more likely that a person who might be affected directly would not realise the significance of the notice.

Once an application for deregistration was lodged, a period of time followed during which objections could be heard. However, how can one object when one is blissfully ignorant of anything about which to object? No provision was made in the 1965 Act to allow for deregistration once the period for objection had passed.

It seems almost unbelievable that any person could apply for common land status of another person's land and property without there being a requirement to serve notice on the owner. Even with planning applications, a local authority is required not only to serve notice on the owner but also to inform immediate neighbours. The situation is wholly unacceptable and makes a nonsense of the saying that a man's home is his castle.

To illustrate the point I give your Lordships a true example but I shall retain anonymity of the person concerned. Mr. X goes abroad on business in the late 1960s. While he is away a neighbour, albeit with the best of intentions, registers his land as common land. The requisite time passes for objections and Mr. X receives no notification whatever. It is not until 1987 that he discovers that his home and his land have been registered as common land. Unless this Bill is passed there is nothing that can be done to right that injustice.

There are difficulties, even with this very short Bill in achieving the correct wording—the question, for instance, of a person whose garden but not house is registered. The requirements of the Bill set out in Clause 1 refer to land ancillary to a dwelling. There is also the question of buildings which existed prior to the 1965 Act but which have subsequently been converted. An example is a converted chapel in Somerset. There is also the question of the meaning of the word "garden" in Clause 1.

Perhaps I may give a case illustrating the point, again retaining anonymity. Mr. Y, who owns one acre of land on which there is a dwelling, has had his land registered without his knowledge. About one-third of the land is set out as woodland. Therefore, the wooded part of his land would not be covered by the Bill even though it forms an extension of his garden. That is an issue which I know concerns my noble friend Lord Monk Bretton.

A suggested form of words for Clause 1(3)—I quote them specifically so that the Minister can give some thought to the matter before the next stage of the Bill—is: For the purposes of subsection (2) above land ancillary to a dwelling house means land which is within the curtilage of the dwelling house, including sites of any private garages or outbuildings, and which is used and enjoyed with the dwelling house, and in that subsection 'dwelling house' includes a building consisting of two or more separate dwellings".

The key word in that suggested wording is 'curtilage'. In the case of any court action, reference could be made to the Oxford English Dictionary definition which is: A small court, yard, garth or piece of ground attached to a dwelling house and forming an enclosure with it".

I must point out at this stage that there is considerable nervousness and downright opposition to the rewording of Clause 1 by, for example, the Open Spaces Society and signatories to the common land forum report. They are anxious that the passing of this Bill should not in any way prejudice the proposed new legislation arising out of the work of the forum and the Government's Green Paper published in 1987 on common lands.

I am also concerned that the Bill should receive support and therefore I invite my noble friend the Minister to look at the wording of Clause 1 and, if necessary, discuss any modification before the Committee stage. In another place this Bill enjoyed all-party support. I hope that the same support can be obtained in your Lordships' House. I beg to move.

Moved, That the Bill be now read a second time—(Baroness Blatch.)

7.30 p.m.

Lord Monk Bretton

My Lords, I begin by thanking my noble friend Lady Blatch for introducing so well the Second Reading of this Bill. I welcome the Bill as far as it goes. I also congratulate Mr. Favell, its promoter in another place, on doing something about this subject and particularly on getting as far as he has.

I am afraid that I have some doubt as to how far the Bill goes. I have received two views. One is that it only allows a house owner to deregister a house and garden where the site of the house as well as the garden was put on the common land register and that it does not allow deregistration of the garden to a house if only the garden was put on the register. The other is that the garden-only situation, as it might be more simply explained, will be remedied by the Bill. I hope so. Perhaps that is right but I have my doubts, and those who take that view might well be disappointed.

Of course it would be preferable to make sure of the position and to amend the Bill in order to put the matter beyond doubt. I should have preferred to see the word "or" inserted at the end of Clause 1(2)(a). I shall be glad to hear what my noble friend Lady Blatch thinks about that and also my noble friend Lord Hesketh, because I understand that the Bill has the tacit blessing of the Government.

There are one or two other areas where the drafting might still be improved a little. It has been suggested to me that the word "garage" in Clause 1(3) would be better in the plural as some people have garages for more than one car.

However, there are further difficulties regarding amenity land which has been registered and those difficulties will not be solved by this Bill. That is why I draw attention to a case in Crowborough, East Sussex, that has been brought to my attention. At some time before 1965 the present owner bought a freehold cottage and amenity land in Crowborough. It is a wedge-shaped site of some two-and-a-half acres with a road on one side of the wedge. At the point of the wedge there is just over an acre of woodland, with an approach road to the cottage through a portion of it. There is no fence or boundary between the woodland and the garden; the garden just merges into the woodland. The woodland has only been used for amenity purposes.

At the base of the wedge there is a garden with a cottage roughly in the middle of it. The owner of this property has spent a great deal of his time abroad in Sri Lanka where he has been employed in business. He has been in England for only short spells mainly on holiday at the property in Crowborough. Consequently, he was not as closely in touch with the nuances, I was going to say, of socialist legislation—which I think it was—as some of us were.

One of his neighbours registered the woodland as common land without the owner ever finding out in time to try to deregister it. It was not until 18 years later that he found out. That was in 1987. There is no doubt that if he had applied in time he would have successfully deregistered, so I am assured. There was no suspicion of existing common rights attached to the site. He naturally feels aggrieved. He purchased freehold land in this country and his rights have not been respected. He feels that Her Majesty's Government owes him a proper remedy and that this Bill is a waste of time because it does not remedy his situation. I agree that he must have mixed feelings about all politicians of both major parties—one party for getting him into this mess and the other for not getting him out of it!

To solve this man's problem would require still further amendment. My noble friend Lady Blatch suggested one course and the other would be to delete Clause 1(3) or to replace subsection (3) by seeking to define amenity land more satisfactorily. Possibly as a last ditch, if one does not want to get too involved in the major area of common land legislation, one could limit the area which is applicable in order not to raise these wider issues. However, this is a Private Member's Bill and I am nervous that to amend it would kill it; after all, half or even a third of a loaf is better than none at all.

Nevertheless, I wonder whether my noble friend Lord Hesketh and his department can see a reliable way to have something better done quickly without waiting for further legislation that may be some way off. I cannot help feeling that dealing with this matter of common land overall is going to be a lengthy and complicated business.

There seems no doubt, I am afraid, that the Commons Registration Act proved to be a charter for unneighbourly neighbours on several occasions. Of course there should have been more adequate notification procedures. I am not surprised that some people feel that it was perhaps vindictive that such procedures were left out. Surely it is not difficult to ascertain the ownership of a house in order to notify the owner. At any rate, more hard words could be said and perhaps it is better not to do so now.

I find myself still considering what to do about this situation. I am reluctant to table amendments. I shall be glad to hear what my noble friend on the Front Bench may be able to suggest. Failing that, I should like to hear how soon we may expect a more comprehensive remedy to be produced. To conclude, I am sure that the Bill should have a Second Reading.

7.39 p.m.

Lord Graham of Edmonton

My Lords, I begin by saying that I am grateful to the noble Baroness, Lady Blatch, not only for promoting the Bill in this House but also for her lucid explanation of the problems that it seeks to solve and her readiness in understanding its very limited nature. From my experience in another place it would be the height of folly and an exercise in futility if we in this House in considering the Bill sought what might euphemistically be termed as improvements to it. For one reason or another that would provide some people with an opportunity to use the Bill not necessarily for our purposes but in order to delay and frustrate legislation.

I have received advice primarily from the Open Spaces and Footpaths Preservation Society that any attempt to broaden the Bill could be interpreted as an opportunity for change. Such an attempt is likely to meet with opposition whether in this House or in another place—if it ever reaches there in the time allowed. I say at once that we fully support the raison d'être of the Bill.

We have to concentrate on two matters. The noble Lord, Lord Monk Bretton, categorised the Commons Registration Act 1965 as a piece of socialist legislation. That was the first political note introduced into this matter and it obviously has some purpose and meaning. With the passage of time it has been recognised that there are defects in the legislation. Now we have the opportunity to put right some of the consequent defects which have been so clearly outlined. It was said in the other place during the debate that took place on 7th April that it was for this Government to do something about it—the antithesis of socialist legislation. I look forward very much to what the noble Lord, Lord Hesketh, will say to us.

Over the last two years—namely, since the manifesto pledge was made—there have been occasions when it could be argued that the Government were in difficulty in knowing precisely what the interests involved with this matter wished them to do in detail. My knowledge of the subject is through reading about it and it is not the detailed knowledge that I respect very much. I do not use the term special pleading at all. I fully understand those involved, whether a landowner, a neighbour or a general member of the public, getting hot under the collar. I accept the views of those who were unable to come to a firm conclusion as to what they wanted. I believe that that position is valid.

I hope that the Minister will confirm my information, that for some months now, and at least from the beginning of the year, there has been general agreement among the bodies that make up the forum as to what it wants. I have come across a body called the Moorlands Association. There may be some people in the House who are much more knowledgeable than I on the subject. This association is not a member of the Common Land Forum. Its particular interest is that it wants special provisions for grousemoor commons. It is a laudable objective for people with that point of view. They are concerned to limit the access of the public to certain lands, and that would raise problems. I wonder to what extent the Government listen more carefully to the Moorlands Association than they do to other bodies and interests.

There are people outside this House who take a deep interest in this matter and they are entitled to receive from the Minister a broad strategy or timeplan in which it is envisaged that a manifesto commitment entered into in 1987 is going to be delivered. It is now 1989. It is a tiny issue in the totality of a manifesto. I appreciate, as the noble Baroness, Lady Blatch, has told the House, that even with tiny issues, if there is one word wrong a major problem arises. Even though it may be a major problem for a tiny handful of people, we should not allow that to happen. The resources that the noble Baroness and I have at our disposal are minimal. We listen to what people tell us, agree with an argument and then stand up to express our views. The department undoubtedly has a very heavy workload, but it also has the people who can worry these matters through.

We on this side of the Chamber not only do not object to but fully support the basis of the Bill, which is to put right matters that should have been got right at the beginning. The Bill now provides the opportunity to put such matters right. I say to the House that any attempt to get legislation through and to broaden, widen or create the opportunity for deregistration by individuals or groups, using the device of the words on the face of this Bill, is likely to create opposition—which is a legitimate tactic in principle—and to run into the sand. The noble Lord, Lord Monk Bretton, used a very good phrase to the effect that half or a third of a loaf is much better than nothing at all.

In that context, I look forward to hearing what the Minister has to tell us. I hope very much that it will not be generalities. He is entitled to give them, but at the end of the day if all this Bill achieves is what it sets out to achieve, we are still left with the need for a major piece of legislation in this context. In that event, we shall come back with another tiny nibble at the issue in due time. We on this side of the House warmly appreciate the Bill and the manner in which it has been presented. I look forward very much to hearing what the Minister has to say.

7.47 p.m.

The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh)

My Lords, I am glad to have this opportunity of saying a few words in support of the Bill. I commend the honourable Member for Stockport for introducing it in the other place and my noble friend for taking responsibility for it in this House. I was interested to read recently in the national press of the difficulties Mr. and Mrs. Roe were having in trying to sell their house in Northumberland which had been incorrectly registered under the Commons Registration Act 1965. We do not know how many other householders are in a similar position but we believe that there could be several hundreds.

In the 1965 Act there was no requirement that owners be notified that their land had been so registered, which would have enabled them to object at the appropriate time and secure the removal of houses from the register. There was extensive publicity about the registration process and the opportunity to object to the provisional registration of land, but there was no reason why householders should consider it necessary to check whether their houses had been registered. That was a point drawn to your Lordships' attention by my noble friend Lord Monk Bretton.

The report of the Common Land Forum in 1986 recommended legislation to enable incorrectly registered houses and gardens to be removed from the registers. This was one of over 100 recommendations for a comprehensive legislative package. It remains our aim, as we stated in our response in January 1987 to the Forum Report, to introduce comprehensive legislation, based broadly on the forum's recommendations, at a suitable opportunity when Parliamentary time permits. This current Bill will not affect that intention but, as my honourable friend the Parliamentary Under-Secretary of State said a month ago at the Third Reading of this Bill in the other place, comprehensive legislation needs to be on the basis of some further work and agreement.

In the meantime we believe that it is unreasonable to expect people who find their houses on the registers to wait indefinitely for legislation to be enacted before they can sell their properties. This Bill will have the very useful result of enabling a start to be made on removing the most obvious absurdities. The sponsors of the Bill have confined it to cases where the houses have been in existence since 1945, so it may not cover all the anomalies, although hopefully it will embrace the majority of them.

As regards the suggestion that Clause 1(3) of the Bill might be amended to include the curtilage of a dwellinghouse, for the reasons pointed out by the noble Lord, Lord Graham, we would be wary of any amendments being introduced which might extend the Bill to cover areas beyond the gardens of houses. Nevertheless, we will look into the suggestion, without any commitment, in conjunction with the Bill's sponsors.

My noble friend Lord Monk Bretton suggested that "and" in line 15 could be changed to "or". Again, with the sponsors of the Bill, we will consider this suggestion. Further to that, he also asked whether the "garden only" position is adequately covered by the Bill. We shall look at this matter and discuss it with the sponsors to ensure that the Bill is unambiguous on this point.

If the Bill is passed it will be for the Secretary of State to make regulations. We would hope to have them in place as soon as possible after the Bill is enacted. We shall consult on the content of the regulations on which departmental officials have already started work. One matter which will need to be covered is publicity. We anticipate that the regulations will make provision for there to be publicity on site and in the local press, as well as notification to parish and other councils, interested owners and commoners, and to the Open Spaces Society. I hope that the speedy progress already made by the Bill will continue and I commend it to the House.

Lord Graham of Edmonton

My Lords, I am grateful for what the noble Lord has said so far. He is correct when he says that there needs to be broad agreement. I am told that the interests within the forum have resolved their differences—the differences between the ramblers, the Open Spaces Society and the Countryside Commission. Can the Minister confirm that there is now no impediment to bringing forward the Bill? If there is no opposition within the forum, can we anticipate an early presentation of a government measure?

Lord Hesketh

My Lords, I assume that the noble Lord is referring back to his earlier remarks concerning the Moorlands Association and the access interest. We are considering these matters at the moment very carefully and equally. That is why I was unable earlier to give him the specific date he asked for.

Lord Graham of Edmonton

My Lords, the noble Lord ought to be quite clear. We are dealing with the forum, and within the forum there is no dispute. He is telling us that a body—the Moorlands Association—which is outside the forum is having its voice weighed and taken into account. That may be perfectly proper but the Minister should recognise that the voices to be heard are the forum voices. They are now as one. To that extent there should be no impediment to progress.

Lord Monk Bretton

My Lords, before my noble friend sits down perhaps I may mention one point.

I want the "or" at the end of subsection (2)(a) of Clause 1 and not at the end of subsection (2)(b).

Lord Graham of Edmonton

To be or not to be.

Lord Hesketh

My Lords, I shall have to read the Official Report to see whether I have it right.

Baroness Blatch

My Lords, I am grateful to those noble Lords who have spoken in the debate and contributed in such a constructive way. It is a joy to have all sides of the House in agreement about the objective. I am grateful to my noble friend the Minister for his promise to look without prejudice into the suggestions made during the debate. However, the warnings given by the noble Lord, Lord Graham of Edmonton, and myself, and even the reference made by my noble friend Lord Monk Bretton about half a loaf being more acceptable than no loaf at all, should be borne in mind.

Any modification to the Bill must secure a basis of agreement because the Bill's progress must not be hampered. As a result of a defect in the 1965 Act, many innocent people have suffered in a number of ways, including financially where common land status has prevented the sale of a person's property. Although Parliament awaits a Bill on the wider issues of common land, I feel that it is right now to press ahead with this Bill to put right an injustice affecting some hundreds of people. Tonight's debate bodes well for its progress. I hope that it will reach the statute book unimpeded.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Viscount Long

My Lords, I beg to move that the House do now adjourn during pleasure until 8.20 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.55 to 8.20 p. m.]