Lords Amendment No. 6: After Clause 17, in page 18, line 20, at end insert new Clause "A"—
A.—(1) A local highway authority may enter into an agreement with any person having an interest in any land on which a building is, or is proposed to be, situated, being a person who by virtue of that interest has the necessary power in that behalf,—
A footpath created in pursuance of an agreement under this section is hereinafter referred to as a "walkway".
(2) An agreement under this section may make provision for—
(3) Subject to subsection (4) below, any covenant (whether positive or restrictive) contained in an agreement under this section and entered
into by a person having an interest in any land affected by the agreement shall be binding upon persons deriving title to the land under the covenator to the same extent as it is binding upon the covenator notwithstanding that it would not have been binding upon those persons apart from the provisions of this subsection and shall be enforceable by the local highway authority against those persons.
(4) A covenant contained in an agreement under this section shall not be enforceable by virtue of subsection (3) above against a purchaser for money or money's worth of a legal estate in any land affected by the agreement unless before the completion of the purchase the agreement has been registered in the prescribed manner in the register of local land charges of the local authority in whose area the land is situated.
The power conferred by section 15(6) of the Land Charges Act 1925 to make rules for giving effect to the provisions of that subsection shall be exercisable for giving effect to this subsection; and in this subsection "prescribed" means prescribed by rules made in the exercise of that power and "purchaser" has the same meaning as in that Act.
(5) A local highway authority by whom an agreement under this section has been made may make byelaws regulating—
(6) Not less than two months before they propose to make byelaws under subsection (5) above a local highway authority shall display in a conspicuous position on or adjacent to the walkway in question notice of their intention to make such byelaws, and the notice shall specify the place where a copy of the proposed byelaws may be inspected and the period, being a period of not less than six weeks from the date on which the notice was first displayed as aforesaid, within which representations may be made to the local highway authority, and that authority shall consider any representations made to them within that period.
(7) The Minister of the Crown having power by virtue of section 250 of the Local Government Act 1933 to confirm byelaws made under subsection (5) above shall have power to confirm them with or without modifications and if he proposes to confirm the byelaws with modifications he may, before confirming them, direct the local highway authority by whom the byelaws were made to give notice of the proposed modifications to such persons and in such manner as may be specified in the direction.
(8) Subject to subsection (9) below, the Secretary of State after consulting such representative organisations as he thinks fit may make regulations—
(9) Regulations under this section shall not exclude the rights of statutory undertakers, sewerage authorities or the Post Office to place and maintain apparatus in, under, along or across any part of a walkway, being a part which is not supported by any structure.
(10) Without prejudice to subsection (9) above, regulations under this section may make different provisions for different classes of walkways and may include such incidental, supplemental and consequential provisions (and, in partcular, provisions relating to walkways provided in pursuance of agreements made before the coming into operation of the regulations) as appear to the Secretary of State to be expedient for the purposes of the regulations.
(11) Nothing in this section shall be taken as affecting any other enactment by virtue of which highways may be created.
§ The Minister for Local Government and Development (Mr. Graham Page)
I beg to move, That this House doth agree with the Lords in the said Amendment.
The Clause enables local highway authorities to enter into agreements for the provision of ways over, through or under parts of buildings, and for the dedication of such ways as footpaths. They are referred to in the Clause as walkways. Indeed, they have become known as that from certain Private Bill legislation which has passed through the House.
Agreements can be subject, under the Clause, to limitations and conditions affecting the public rights of way over the footpaths and these agreements can make provision for the termination of those rights of way, for the maintenance, lighting, support, and so on, of the walkway, for entry by the highway authority to carry out works in default, and for payments by the highway authority to any 1376 person having an interest in the land or building concerned.
The Clause provides that any covenants in an agreement shall be binding on successors in title to the land and enforceable by the local highway authority. The House will know that without a provision of that sort a positive covenant would not run with the land, and therefore it is necessary to make that special provision in the Clause.
The Clause also allows the local highway authority to make byelaws, and it allows the Secretary of State to make regulations amending, modifying or adapting highway law or preventing its applying to walkways altogether. There is a specific provision to enable the Secretary of State to exclude, restrict or regulate the rights of statutory undertakers, sewerage authorities and the Post Office in the walkways. The power to make regulations includes the power to define the circumstances and manner in which walkways may be closed or stopped up, and there will be full consultation with interested parties and organisations about the contents of the regulations.
The new Clause is really only paving the way for consultation upon full legislation by regulation on this subject The background to it is that four local authorities have secured local act powers to provide walkways. They are the City of London, Newcastle-upon-Tyne, the G.L.C., and Liverpool. The G.L.C. obtained additional walkway powers in a later Act. Because of the growing interest in walkways, and because there was some opposition to the City of London Bill on walkways, an advisory group was set up in February, 1968, under the chairmanship of the Ministry of Housing and Local Government, comprising representatives of Government Department and local authorities, to consider the legal and planning questions raised by walkways.
Its report was submitted to the Ministry in February, 1969. It was issued to interested persons and it recommended comprehensive legislation, to include powers to allow local authorities to create and acquire rights over land for the purpose of making these walkways and to undertake work and enter into agreements with developers to provide walkways. 1377 Legislation on these lines would un-doutedly be very complex and lengthy. It seemed to me to be more convenient to pave the way for the legislation to be made by regulation. This would allow better consultation between the parties concerned than perhaps one can have in pending legislation for various privilege and traditional reasons before the House.
It is possible to consult better when preparing legislation by regulation than when preparing normal legislation to pass through this House. In addition, if legislation is by regulation it will be easy to amend. After all, we are embarking on something rather experimental and would like to keep the legislation flexible. The Committee of this House which considered the Greater London Council Bill reported to the House that it considered walkways a matter for public legislation and that we should not go on allowing the powers to come forward piecemeal in Private Bills. During Third Reading of the Greater London Council (General Powers) Bill, 1970, I announced that the Government had accepted the Committee's recommendation and I said that a Bill would be introduced as soon as possible. This partially takes the place of what I anticipated then would be a Bill.
Pending an opportunity to introduce more comprehensive legislation I decided to introduce into the Highways Bill this limited Clause concerned solely with cases where agreement can be reached between the highway authorities and the owners or developers. The really contentious issues arising on this subject relating to whether or in what circumstances statutory undertakings will be allowed to put their apparatus into walkways will be dealt with in the regulations and there will be full consultation with the interested parties on this subject. It may be, and I hope that this will be the case, that this Clause will go as far as is necessary. True it deals only with agreements and not in any way with compulsory powers, but I hope that compulsory powers may not prove necessary and all of this can be done by agreement. I would hope that with some luck in getting the parties to agree between themselves, this Clause might obviate further legislation.
§ Mr. Mulley
I welcome this experimental approach to what is an important 1378 new development in city planning, particularly as many of us believe that before long the centres of many of our great cities will be open to pedestrians only, with possible exemptions for public transport. I am sure it is right that we should not have a succession of local authorities coming along with Private Bills to obtain these powers but that there should be this general provision. I cannot go as far as the hon. Gentleman by saying that it is impossible to consult much with local authorities about Bills before the House. This is a new doctrine which would be thought a little dangerous by the local authorities concerned.
What has been done about consultation with local authorities? I am sure that they will be consulted, but it would be well to know that, in making this proposal, the Government have ensured that the local authorities concerned have been consulted on the broad principle.
I have already deplored the tendency in this Measure to give everything to the Secretary of State. Throughout the Bill he is able to do this, that and the other "if he sees fit", and this is giving him a lot. Indeed, if he thought fit, he would not consult anybody. The Bill tilts everything in his favour and this is rather worrying.
Would the Minister comment on the question of compulsory purchase powers in relation to the provision of walkways? I gather that it will not be proposed in any regulations to provide walkways without the agreement of those with interest in the land. In other words, I take it that this will be completely different from the arrangement applying to footpaths, which can be created, for example, as a result of usage over a period of time.
A footpath can be sought, a notice inserted in a newspaper and the route of the footpath placed on a county map perhaps before the owner of the land over which the footpath passes has taken up his rights of appeal. I gather that there is no question of that happening in this case and that the agreement of the owners of the land will be obtained before any walkways are established.
§ Mr. Graham Page
My answer to the right hon. Gentleman's question about consultation must be that one would wish, in these circumstances, to consult with bodies and interested persons other 1379 than the local authorities. We have a perfectly good arrangement of confidence with local authorities when consulting them on prospective legislation.
The House would, no doubt, be a little annoyed if we were to consult private bodies—for example, the Multiple Shops Federation—and others deeply concerned and gave them a foretaste of legislation. However, we have freedom to consult in this matter and that is what I meant when I spoke of consulting generally over the regulations.
There has been consultation with those concerned over these regulations. Indeed, there is little in the Amendment about which one could take objection, for everything that can happen will happen after the consultation has occurred. Only after that point will anything be laid down.
§ Mr. Mulley
Have local authorities been consulted on the principle that the Secretary of State should have power to make these sort of regulations?
§ Mr. Page
Yes, and perhaps the only new point, or point that has been settled, in the Clause is that there will be power under these agreements to dedicate these walkways as footpaths, and to attribute to them all the rights of the public over a highway, and then the agreements will detract from those highway rights in any way the parties chose.
The highway status of walkways accords with the recommendation of the Advisory Group on Walkways. The G.L.C., the City of London and the City of Liverpool in their local Acts did not give highway status to walkways. The Newcastle Act did, and we have chosen to give them that status under these agreements to start off with, and thereafter to detract from them in the terms of the agreement, by byelaws or by regulations to be made by the Secretary of State. The one major point I wish to make clear about the new Clause is that it gives no power to anybody to compel the creation of a walkway. There are no compulsory powers under the Clause. It must all be done by agreement. That is why I say that I hope we may be able to avoid compulsion and any legislation to deal with compulsion if this Clause giving powers to enter into agreements works well in future.
§ Question put and agreed to. [Special Entry.]
§ Subsequent Lords Amendments agreed to.