PUBLIC RIGHTS OF WAY. (Hansard, 28 March 1928)

Sir HENRY COWAN
I beg to move, That leave be given to bring in a Bill to amend the law relating to public rights of way. The Bill which I am asking leave to introduce has for its object—[HON. MEMBERS: "We cannot hear a word!"]—the simplification of the methods of proving whether a disputed right of way is or is not a public right of way. The law in regard to private rights of way is governed by the Prescription Act, 1832, and under that Act it is extremely simple to ascertain at a minimum of cost whether a right of way over private land giving access from one private estate to another is or is not a right of way, but the position in regard to public rights of way is very different. I would like, in the first instance,, to satisfy the House that there is an urgent need for such a Bill as the one I am asking leave to introduce. In order to do that I ask to be allowed to quote the words of a very eminent authority on this subject: It is unfortunate that since 1832. when the Prescription Act was passed, and private rights of way were put as regards the evidence of their existence on something like a rational basis, no step should have been taken as regards public rights of way. It is quite true to say that the law on this subject is in a state of great confusion. Presumption of dedication in the case of public rights of way is almost as vague and elusive as was the presumption of lost grant in the case of private rights of way before the Act of 1832 was passed. This Bill"— And this Bill is the same as the Bill I am asking leave to introduce to-day— proceeds upon proper lines, that is to say, it attempts the analogy of the Prescription Act of 1832 and proposes to apply that analogy to public rights of way.

§ Lieut. - Commander KENWORTHY
On a point of Order. I am very sorry to interrupt the hon. Gentleman, but on this side we are very anxious to know the purport of the Bill, and we cannot quite hear whether it is intended to ease the establishment of rights of way or to close them. We are quite at a loss to make out the object of the Bill.

§ Mr. SPEAKER
I think the hon. and gallant Member himself and his Friends should listen.

Sir H. COWAN
I submit that the purport of the hon. and gallant Member will best be served by allowing me to continue my speech without interruption. Therefore I think the principle of the Bill is a very valuable one. Those words were used by Lord Haldane when he was Lord Chancellor in 1909 and a Bill practically identical with the present Bill was introduced in the House of Lords. Lord Haldane went on to say: The Bill has been through a Select Committee in this House two years ago; but it is desirable, so far as its drafting is concerned, that it should be looked at from one or two points which I notice. In the meantime, so far as the Government are concerned, we cordially support the Second Reading of the Bill, and I hope that it will pass into law with any improvements which we may find it possible to make. For these reasons, if your Lordships think fit to pass the Bill through this House, we will give such support as we can to it in another place. I have to apologise to the House for saying that that statement was made in 1909. It was made in 1913. The pledge which the Lord Chancellor then gave on behalf of the Government of that day to give facilities for passing the Bill through the House of Commons could not be redeemed on account of the intervention of the War. In subsequent years the congestion of public business, in this House in particular, made it impossible. I understand, for subsequent Governments to deal with the matter, but I would like to call attention to the fact that this Bill is no stranger here. It was introduced in the first instance by the right hon. Gentleman the present Leader of the Opposition in 1907, when it was read a Second time without opposition and passed through Committee.

§ Lieut. - Commander KENWORTHY
Agreed!

Sir H. COWAN
In the year 1908, it again passed Second Reading and through Committee. In 1909 I myself re-introduced it. In the year 1910 it was again reintroduced. In 1911 it was introduced into the House of Lords by Lord Eversley, that venerable defender of public rights, and was referred to a Select Committee presided over by Lord Alverstone. It was introduced into the House of Commons in 1912. It was carried through the House of Lords without opposition in 1913. It was carried through the House of Commons in 1914. It was again introduced in 1927.
The Bill is intended to remove a very grave difficulty in ascertaining whether or not a track over private land is a right of way. As the law now stands, that can only be established by the presumption of dedication, and dedication means that some owner, either the present owner or some former owner, must have dedicated the land or the path to the use of the public, either expressly or by implication. It is difficult in these cases to find anything in the nature of a grant or written deed, and the Courts have usually taken the view that where an estate is held in fee simple, where it is freehold, where it is not encumbered, by entail or otherwise, that the owner may be presumed to have dedicated the right of way if the public have been using the path for 20 years or, at the most, for 40 years; but where a right of way passes over land which has been in family settlement for a number of years, perhaps for a long period, perhaps for a shorter one—where the land is subject to that limited tenure, where the owner is really only a life renter, it is extremely difficult to establish a public right of way. It is a sufficient answer to the suggestion that there is a public right of way to prove that there was no body vested with the full proprietary rights in the land and in a position to dedicate it. A tenant for life cannot do it, no one but the absolute freeholder, and the result is that very many rights of way in all parts of the country have been closed to the public because it has not been possible to satisfy our Courts that there has been any person in a position to dedicate the land to the public. [HON. MEMBERS: "Agreed!"]
This Bill provides that where a right of way passes over unencumbered land 1178 20 years' user is sufficient to establish public rights on that way, and where it passes—and this is the material alteration in the law—over settled or entailed land 40 years' user gives the public an indefeasible right of way. Owners of land are protected against any danger of new rights of way being set up under this Bill, because they are expressly given the right to erect notices which will bar any such possible danger. The alteration in the law for which we are asking is in accordance with the existing law in Scotland. Scotland leads the way here, as in so many other cases.
Another reason why I ask the House to pass this small Measure is that it will save an enormous amount of unnecessary expense in litigation. In a recent case the taxed costs amounted to £15,000, and in other cases costs have amounted to £2,000 or £3,000. This Bill is promoted by the Commons and Footpaths Preservation Society, an organisation which for 60 years has looked after the public interest in footpaths and commons, an organisation which to-day is acting as a mediator in all questions between land owners and the public, and which has fathered many useful Bills which have passed through this House and the House of Lords. No fewer than 500 local authorities have passed resolution in favour of this Bill. For all these reasons I ask the House to give me leave to introduce this Measure.