HC Deb 04 July 1967 vol 749 cc1615-22
Mr. Monro

I beg to move, Amendment No. 22, in page 12, line 26, at the end to insert: Before submitting an access order to the Secretary of State, a local planning authority shall consider the extent to which access is available by means of public paths or rights of way over any land which the authority proposes should be comprised in the order, and a report on such access facilities shall be attached to the order when it is submitted to the Secretary of State. If the Secretary of State is satisfied that there are adequate access facilities by means of public paths or rights of way, he shall not confirm the order. We are still on the third Clause dealing with access orders and agreements. There is some opinion in Scotland, certainly in the Landowners' Federation, that where there is already access to the countryside through public footpaths and rights of way, there is no need to bring in an order or even to make an order. It may be that that is unlikely to happen because where there is good access the local planning authority may not deem it necessary even to negotiate an agreement. But the view is held strongly that where these circumstances appertain, there should be no legal need to bring in an order or an access agreement, and that if the matter is taken to the Secretary of State for confirmation he should have full information about the footpaths and rights of way which already exist in the area prescribed in a possible order. The Amendment speaks for itself.

Dr. Dickson Mabon

I thought that perhaps my hon. Friend the Member for Motherwell (Mr. Lawson) would speak on this Amendment. While I regard the Amendment as unnecessary because the common sense of the local planning authorities is bound to prevail, I can see a point in the question about public rights of way, which is an issue, particularly in Scotland and particularly at present. Clause 12(2,b) as it stands already adequately imposes a duty on the local planning authority. It would seem to me strange if the local planning authority wanted to go to all the trouble and possible expense of making an access order or agreement if all that they wanted was public access by a right of way or public footpath. The local planning authority might feel that there ought to be more than a public footpath or right of way and that it should be made up in a much more substantial way. They might desire the combination of two kinds of access, with a public path to part of the farm—

Mr. Stodart

Primrose Wood.

Dr. Mabon

I would rather not be taken there again, in view of our earlier discussion.

It may be that they wanted a public path in the first instance on arable land and simply free access to a higher area of land above the arable farm land. It is a matter of good sense which we should leave to the local planning authority for them to decide how they want to proceed and whether they want to go to the expense of being open to pay compensation, which they will have to justify fully in any proposed order to the Secretary of State before he will confirm it.

What the hon. Member seeks is sensible and to some extent it is bound to depend on the circumstances, but this is a rather heavy-handed method. Writing this procedure into the Bill might be otiose in character. I do not dissent from the principle, but I disagree that we should put it into the Bill, and I appeal to the hon. Member not to press it.

Mr. Lawson

My hon. Friend the Minister of State thought that I might intervene in the debate. Perhaps I should apologise for intervening after he has spoken.

I am not against this idea, which I am sure is genuine, but I have had the experience more than once of trying to go over what I considered were rights of way only to find it very difficult to traverse those rights of way. I recall seeing a big notice at one point, put up by the Rights of Way Society, stating "Right of Way" and pointing out the right of way. A little further up the right of way there was another big notice, "Trespassers will be prosecuted". I followed that right of way, but it is not always easy to do so.

My right hon. Friend ought always to be very careful that these rights of way are not just paper rights of way, marks on a map, which have long since ceased to be open. If this question arises and the argument is that there are adequate rights of way, I take it that he will ensure that the rights of way are genuine and adequate. On a previous occasion I expressed some fear that existing rights of way might be lost in opening up less accessible routes to open country. I still have that fear. But I wish to emphasise that a right of way on paper is not always a right of way in fact. I hope that that point will be kept very much in mind.

Mr. W. Baxter

The Minister of State agrees that the principle in the Amendment is sound and reasonable but thinks it unnecessary to put it into the Bill. I question that. Indeed, I go further and say that it would be well to put it into the Bill even by virtue of the speech of my hon. Friend the Member for Motherwell (Mr. Lawson). Over the years my hon. Friend has to some extent been inhibited in going over land throughout Scotland because of notices stating that trespassers will be prosecuted. In fact, trespassers are not prosecuted in Scotland unless they do material damage. The law of trespass in Scotland permits one to trespass over any field in Scotland and any moorland by virtue of right. It is only when one is doing damage to property when trespassing over that land that one can be prosecuted.

Mr. Lawson

I was speaking of a notice put there for a particular purpose. My hon. Friend will not dispute that such notices are to be seen in Scotland.

Mr. Baxter

The purpose of putting up a notice is to deter people from doing the damage which they certainly can do. No one wants to prosecute, because of the cost involved, and one sometimes, therefore, puts up a notice stating, "Trespassers will be prosecuted", or "Rubbish shall not be dumped here". The law stipulates that rubbish shall not be dumped here, there and everywhere, because it is against the law to do so, but sometimes one puts up these notices to draw attention to the fact that rubbish shall not be dumped in a particular place. In any event, even without the notice, people could be prosecuted for dumping rubbish. Notices have been put up throughout Scotland that trespassers will be prosecuted but the law of Scotland does not permit them to be prosecuted.

In open spaces, farms and land around industrial areas, there have been a con- siderable number of rights of way which have been established over the years and which should be conserved and preserved for the public. The purpose of the Amendment is to try to keep under control the number of accesses into those open spaces where, when all is said and done, many sheep and cattle will still be permitted to graze. The more accesses there are, the greater the difficulty of controlling sheep and cattle straying on to the public highway.

There is a school of thought in the House that to permit sheep and cattle to stray on to the public highway should be an offence. At present it is not an offence. Sheep and cattle have priority over vehicular traffic. But I remind hon. Members that we are legislating for the future and that the more accesses there are, the more difficult it is to control the livestock.

The Amendment does not prohibit the planning committee from putting the will of the Commission into operation about an open space. It simply provides that when the order goes to the Secretary of State for approval, there should be a recommendation that he should also see the other point of view. The decision should rest with the Secretary of State for Scotland. That is not wrong. It is right that the Secretary of State, answerable to Parliament from time to time, should be able to control certain planning actions of local authorities in the area.

I would only give this counsel. It is wrong to imagine that every Committee of this House is sensible. It is wrong to imagine that all the planning committees of all the local authorities in Scotland are sensible planning committees, and that they never err. When recommendations go to the Secretary of State, and the opposite point of view has been put in a memorandum, the Secretary of State can either approve or reject them. I think that, in the circumstances, the Amendment is reasonable.

6.0 p.m.

Mr. Dempsey

Is the Minister satisfied that a right of way is an effective access to open land or open places on any of the Commission's property? A right of way has always proved a very difficult project. It is naïve to say that anyone who trespasses on what he thinks is a right of way is not committing an offence. He is, and he can be dealt with in the local court. The trouble is usually not the trespass but the trampling down of growing grass. It must therefore be understood that there is considerable additional difficulty in respect of rights of way and open access. A farmer will sometimes put up a barricade across a path and say that it was never a right of way and never shall be.

If I were trying to enter the Commission's property, I would find myself involved in tremendous legal jargon and procedural difficulty. I should probably have to dig up people who lived in the district in 1912, and take them to court to prove that they walked on the particular pathway in that year and so established a right of way. That would prove a great problem, but I know that local authorities have had to do that sort of thing on a number of occasions in order to establish a right of way. Local individuals find themselves financially restricted, so the local authorities have had to take the necessary action.

Is the Minister of State aware of the difficulty of using rights of way as means of access to the Commission's property? I would prefer him to establish official accesses to the Commission's open spaces—indisputable accesses which could not be denied at local level or in court. I ask my hon. Friend to apply his mind to this problem, because it is causing a good deal of embarrassment in many parts of Scotland at present. The present position has caused considerable concern. It has sometimes ended in fisticuffs in an open field, with the farmer saying that it is not a right of way and the public saying that it is.

This Bill will soon become an Act of Parliament, and it would be very invidious if some people getting the benefits of a 1967 Act of Parliament found that they only had to jump over a hedge to establish a right of way to Commission property. Does the Minister of State realise that scarcely a year passes but we read in the Press of this sort of thing occurring? I hope that he will establish beyond a shadow of doubt that if there is access to the Commission's property it is undeniable and free access for the people who wish to use it.

Mr. Stodart

Would not the hon. Gentleman give further thought to this point? With great respect, I think that he is perhaps remarking a little too often that common sense will prevail. Common sense is not a commodity that is either gifted or distributed to the extent of 100 per cent. There is always a minority—and it may be some time, alas, before an Administration like the Government before the last in back in power. Until then, we have to drag on and make the best of it.

The Minister of State will recall considerable discussion in Committee about what constituted open country, livestock rearing land, and so on. Today, we have deliberately not attempted to go over that ground again, but I must say that land subject to access orders includes land which either is or gives access to open country; it need not itself be open country. We can loosely describe open country as being the hills, although it also includes cliffs, the foreshores, and so forth.

We can have a farm that is itself excepted land but which lies next door to land which is in open country, so that the farm that is excepted land must be able to give access. It is then, presumably, liable to having an access order served on it if agreement fails. That kind of farm may have a lot of cultivated land—I do not want to labour a point that was made in Committee—and it may also perfectly possibly already have through it either a public path or right of way. The purpose of the Amendment is to ensure that the existence of the path or right of way is taken into account before any access order is confirmed.

I believe that I won the agreement of the hon. Member for Motherwell (Mr. Lawson) when I said that it is possible—indeed, not possible but inevitable—that even by walking up the side of a cultivated field one does some damage. That is quite inevitable, and I am sure that the hon. Gentleman agrees with me that one should not do it if it is possible not to do so.

An access order can be used only if attempts at agreement have failed. It is perfectly possible for the occupier of a farm and the local planning authority to fall out on no other ground than the suitability or adequacy of an existing path. The owner might say, "That is good enough," while the local planning authority might say, "It is not wide enough More people will use it than you imagine." In such a case it would be advisable, and this is all that the Amendment seeks to do, to have the existence of a path or right of way taken into consideration by the Secretary of State before he confirmed the order. He should be the final arbiter. A dispute could arise perfectly easily.

I am grateful to the Minister—I have seen that look of rapt attention on his face as I have spoken and I hope that he has been taking it in. So far, he has merely said that he does not think that the Amendment is necessary. He accepts the principle, but say that there is no likelihood of such a thing happening. I strongly commend him to win a bit of good will by putting these words into the Bill.

I know that he can shut me down by saying that to do so would lengthen the Bill. I do not approve of superficial words, but occasionally they can be useful, if only for winning a certain amount of good will. Quite apart from good will, there could be an occasion on which the arbitration of the Secretary of State could be of great value. I therefore hope that the Minister will think again.

Dr. Dickson Mabon

I should like to do that, but, having heard the speech of my hon. Friend the Member for Coat-bridge and Airdrie (Mr. Dempsey), I think that if we included this it would be open not only to the rewarding possibility of getting good will but also to the disappointing circumstances of being terribly badly misunderstood. This is a matter of rights of way—I will not use the phrase, "digging up those of 1912" to prove it—

Mr. Dempsey

I am sure my hon. Friend will appreciate that I am a man of metaphors.

Dr. Mabon

Yes, but sometimes the argument might be good as well, and it is a good argument which my hon. Friend has put forward today. He spoke about the Scottish Rights of Way Society, which is very anxious that we should copy the English Statutes and have a long legal search for rights of way which might have existed over the years. We have tried to establish rights of way which are in current, or will be in prospective, use as well as new rights of way established by access agreements.

Clause 46(1) says: It shall be the duty of a local planning authority to assert, protect and keep open and free from obstruction or encroachment any public right of way … Rights of way are important, but we are talking about a balance of argument and it is said that if there are rights of way, ought there to be access agreements or orders? There may be circumstances where there are not only rights of way but there have to be access orders or agreements as well.

I do not like writing into a Bill something which is unnecessary and which might lead to misconstruction. That it is unnecessary is a good argument for rejecting the proposal, because it is a mistake to put into a Bill more things unnecessarily, and goodness knows this is a long enough Bill already. But it is also open to misconstruction. I accept that there are circumstances where this problem might arise, but if the Secretary of State acts in the way in which we expect him to act, it will not be necessary always to have this provision. It may be a rather heavy chariot to get home an access agreement or an order to the Secretary of State. I appeal to the House not to make this Amendment but to accept that we agree with the spirit of it and that it would be wrong to put it into the Bill.

Amendment negatived.