AMENDMENTS RELATING TO CREATION, STOPPING UP AND DIVERSION OF PUBLIC RIGHTS OF WAY (Hansard, 14 June 2000)

HC Deb 14 June 2000 vol 351 cc983-1006 983

§ 6 pm

§ Mr. Bennett
I beg to move amendment No. 72, in page 50, line 26, at end insert— '.After section 26 of the 1980 Act there is inserted— "Application for a public path creation order 26A.—(1) Any person may apply to a council for the area in which the land is situated for the making of a public path creation order to create a footpath or bridleway over the land.
(2) An application under this section shall be in such form as may be prescribed and shall be accompanied by a map, on such scale as may be prescribed, showing the land over which the public right of way would be created, and by such other information as may be prescribed.
(3) An application may be made by the owner, lessee or occupier of any land used for agriculture, forestry or the breeding or keeping of horses for a creation order concurrently with an application under section 118ZA or 119ZA for a public path diversion order or extinguishment order, and such an application is referred to in this section as a 'concurrent application'.
(4) Regulations may provide—

(a) that a prescribed fee is payable on the making of a concurrent application under this section, and

(b) that further prescribed charges ale payable by the applicant if the application is granted.

(5) An application under this section is not to be taken to be received by the council until the requirements of regulations under section 121A below have been satisfied in relation to it.
(6) A council which receives an application under this section shall, after consulting such persons as may be prescribed, determine the application as soon as reasonably practicable.
(7) Before determining to make a public path creation order on a concurrent application under this section, the council may require the applicant to enter into an agreement with them to 984 defray, or to make such contribution as may be specified in the agreement towards, any compensation which may become payable under section 28 below.
(8) Where—

(a) an application under this section has been made to a council, and

(b) the council have not determined the application within twelve months of receiving it,

the Secretary of State may, at the request of the applicant and after consulting the council, direct the council to determine the application before the end of such period as may be specified in the direction.
(9) As soon as practicable after determining an application under this section, the council shall—

(a) give to the applicant notice in writing of their decision and the reasons for it, and

(b) give a copy of the notice to such other persons as may be prescribed.

(10) This section has effect subject to the provisions of sections 121A and 121C below.
(11) In this section— 'prescribed' means prescribed by regulations; 'regulations' means regulations made by the Secretary of State.".'.

§ Mr. Deputy Speaker
With this it will be convenient to discuss the following: Amendment No. 99, in page 50, line 31, after "agriculture", insert ", land management".
Amendment No. 86, in page 50, line 31, leave out "and forestry" and insert— ', forestry and the breeding and keeping of horses'. Amendment No. 100, in page 50, line 45, at end insert— (3) In this section "land management" means—

(a) any activity associated with agriculture or forestry;

(b) any activity to improve or maintain habitat for wildlife and biodiversity;

(c) any activity to maintain, improve or use sporting opportunities on the land;

(d) pest control; or

(e) any other activity undertaken by or on behalf of the owner in furtherance of earning an income from the land.'.

Amendment No. 90, in page 51, line 21, leave out from "section" to end of line 24.
Amendment No. 88, in page 51, line 21, at end insert— '( ) that where any prescribed fee exceeds the costs actually incurred by the council, the fee payable shall not exceed those costs, and ( ) that prescribed fees may be reduced or waived by the council in recognition of any benefit to the public if the application is granted, and'. Amendment No. 73, in page 51, line 41, leave out "four" and insert "twelve".
Amendment No. 91, in page 54, line 35, leave out from "section" to end of line 38.
Amendment No. 89, in page 54, line 35, at end insert— '( ) that where any prescribed fee exceeds the costs actually incurred by the council, the fee payable shall not exceed those costs, and ( ) that prescribed fees may be reduced or waived by the council in recognition of any benefit to the public if the application is granted, and'. Amendment No. 74, in page 54, line 48, leave out "four" and insert "twelve".
985 Amendment No. 87, in page 64, line 12, after "forestry", insert— ',the breeding and keeping of horses'. Government amendments Nos. 271 and 214.

§ Mr. Bennett
This is a matter of natural justice. The Government are providing a right for the landowner to propose a procedure to close or divert rights of way. We are simply asking that the general public should be able to press councils to create new footpaths. It is a matter of balance, and I hope that the Minister will accept the amendment.

§ Mr. Paice
I shall speak to the amendments that my hon. Friends and I have tabled. Amendments Nos. 99, 86 and 100 go hand in hand. Amendment No. 99 would introduce the concept of land management, so that councils would have to have due regard not only to agriculture and forestry but to land management. Amendment No. 100 would add the definition of land management that we discussed last night in a different context. Amendment No. 86 would add the need to have due regard to the interests of the breeding and keeping of horses.
The reasons for the amendments are self-explanatory. In principle, we appreciate the fact that councils will have to have regard to agriculture and forestry, but in today's world it is important to think about wider aspects of land management, including other activities that landowners, occupiers or tenant farmers may wish to carry out on their land that may not necessarily be classified under the headings of agriculture and forestry.
On the issue of horses, I again draw the House's attention—as I did last night in a different context—to the document "An action plan for farming", which the Government published on 30 March. It refers to the fact that a significant rural-based industry centres upon horses … The Government has assigned the Ministry of Agriculture, Fisheries and Food responsibility for working with the horse industry to help develop its potential for rural-based employment. It goes on to refer to changing the planning guidance and to the possibility of rate relief.
In addition to that policy, there seems to be a contradiction in schedule 6. Line 31 on page 50 refers to the needs of agriculture and forestry, but line 11 on page 51 refers to agriculture, forestry or the breeding or keeping of horses. If it is right in that sense, and it certainly is, it should also be included in the earlier paragraph about the duty of councils to have due regard to the needs of agriculture and forestry.
This groups of amendments includes our amendments to curtail charges made by councils. Much discussion was held in Committee about how much people will be charged under the schedule for the making of applications and what is described in the Bill as "further prescribed charges". We are concerned that the term "further prescribed charges" is too open and wide. It would allow a council to make a charge that was beyond the special nature of the particular application, and included an element of margin or profit, call it what you will. 986 The purpose of our amendments is to curtail those charges to no more than those incurred by the council, and to give councils the power to waive charges if there is a public benefit in the extinguishment order that the council is considering. We think that it is right and proper for the council to have that level of discretion. The other two amendments make the same points for diversion orders as opposed to extinguishment orders.
Our amendments are small but important. I commend them to the Minister, and I trust that he will respond constructively.

§ Mr. Mullin
I shall do my best. Amendment No. 72, tabled by my hon. Friend the Member for Denton and Reddish (Mr. Bennett), would give a right for anyone to apply to a council for an order under section 26 of the Highways Act 1980 to create a footpath or bridleway.
As I said in Committee, I agree with my hon. Friend that local authorities should be more willing to consider making use of their powers to create footpaths and bridleways by agreement with landowners or by order. We are keen to promote the joining up of missing links in the rights of way network, and we want to encourage a more proactive approach by local highway authorities to meeting modern day recreational needs. However, we are not convinced that giving a person a right to apply for creation orders over someone else's land is an appropriate way of achieving that.
In the consultation paper issued last year, we explained that it would not be appropriate for people to have an express statutory right to apply for creation orders. Highways exist for the wider public benefit, and we believe that the responsible public authorities should determine whether, and if so where and when, to initiate specific proposals for creating new highways. It is for them to decide whether a new footpath or bridleway is needed.
The public will be able to influence local authorities' strategies towards the creation of new rights of way during consultations on the improvement plans that authorities are required to prepare under clauses 53 and 54. Landowners who are willing for a path to be created over their land have no need to apply for an order. For example, the Highways Act 1980 already enables them to enter into an agreement with their local authority for the creation of public paths. Therefore, I am afraid that, once again, I have to ask my hon. Friend not to press his amendment.
Amendments Nos. 88 to 91 would modify new sections 118ZA and 119ZA of the Highways Act 1980, which are contained in schedule 6, and would require that, if any prescribed fees exceeded the costs actually incurred by the council, the fee payable should not exceed those costs, and would allow prescribed fees to be reduced or waived by the council in recognition of any benefit to the public if the application were granted.
Those amendments would also remove new section 118ZA(3)(b), which provides the power to make regulations relating to further charges on top of an application fee and in relation to public path extinguishment orders. The regulations will provide that fees and charges do not exceed the costs that they are intended to cover.
It is common practice for authorities to charge administration fees for the work done in considering applications for consent to do something—for instance, 987 planning applications. They have some limited discretion as to whether to waive fees, but there appears no good reason to make an exception for applicants for public path orders, even if public benefit may result. In many instances, applicants will be seeking orders because it is in their interests to do so.
Amendments Nos. 86 and 87, tabled by the hon. Member for South-East Cambridgeshire (Mr. Paice), would require councils to have regard to the keeping and breeding of horses. We believe that that would be consistent with new sections 118ZA and 119ZA. These would introduce a right for owners and occupiers of land used for, among other things, the keeping and breeding of horses to apply for footpaths and bridleways to be diverted or closed. We are therefore willing to consider them.
However, I am afraid that I cannot accept amendments Nos. 99 and 100. Their collective effect would be to extend the duty under section 29 well beyond its current scope. The definition of land management in amendment No. 100 is extremely wide. For example, it includes any activity undertaken in furtherance of earning an income from the land. That could mean almost anything. Arguably, it could cover development—for example, if a farmer were diversifying—and only a short step would be needed to take account of the potential for building housing estates or out-of-town shopping centres.

§ Mr. Paice
The Minister may be technically right, but clearly that is not part of the impact that we would expect. I take him back to the welcome news that he is prepared to consider amendments Nos. 86 and 87. For the purposes of how we proceed, did he say that he will accept them?

§ Mr. Mullin
No. I said that we will consider them, without commitment, at this stage. However, the hon. Gentleman knows that we have a good track record of taking on board points made by Conservative Members. I hope that he will bear that in mind when he comes to consider how he should proceed. It is our view that the amendments would be consistent with the new sections on the breeding of horses.
In so far as the amendments relate to nature conservation, section 29 will be amended by the Bill so as to require authorities to have regard to the conservation of nature and landscape. That complements section 11 of the Countryside Act 1968, which requires public bodies to have regard to the desirability of conserving the natural beauty and amenity of the countryside in the exercise of their functions. Natural beauty is defined as including nature conservation. There has to be a limit on the number of matters that councils are required to consider when making public paths. I am sure that the hon. Gentleman will agree with that when he reflects on it. We are almost at that limit and, although I am willing to consider amendments Nos. 86 and 87, I hope that he will not press amendments Nos. 99 and 100.
Amendment No. 214 is essentially a technical amendment that forms part of the mechanism for determining appeals arising from the new right of landowners and occupiers to apply for orders to divert footpaths and bridleways that pass over their land and for school proprietors to apply for diversions of rights of way that cross school grounds to protect staff and pupils.
Amendment No. 271, which arises from an amendment moved in Committee by my hon. Friend the Member for Stafford (Mr. Kidney), would ensure that charges cannot 988 be imposed under current legislation for members of the public to inspect registers of applications for certain stopping-up and diversion orders, which councils will be required to keep under new section 121B(5) of the Highways Act 1980.

§ Mr. Hogg
I want to comment briefly on amendment No. 72 as nothing has been said about it from the Conservative Benches. I am as much a walker as the hon. Member for Denton and Reddish (Mr. Bennett), but I am wholeheartedly against the amendment for three reasons. First, it would not prevent frivolous and vexatious applications. Secondly, landowners would have to respond to such applications. That would cost them money and I am thoroughly against imposing new charges on farmers and landowners. Thirdly, I find it incompatible with my concept of private property, which we sometimes seem to be in danger of losing sight of in these debates.
I say to the Under-Secretary that, although I do not always agree with him—indeed, I usually do not agree with him—I robustly endorse his rejection of the amendment.

§ Mr. Bennett
I am not particularly happy with the Minister's reply, but perhaps we can pursue the matter further when we discuss new clause 2. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

6.15 pm

§ Mr. Meacher
I beg to move amendment No. 228, in page 51, line 2, leave out from "(f)" to first "a" in line 4.

§ Mr. Deputy Speaker
With this it will be convenient to discuss the following: Government amendment No. 229.
Amendment No. 59, in page 52, line 17, leave out from beginning to end of line 30 on page 53.
Government amendment No. 230.
Amendment No. 113, in page 52, line 19, leave out "footpath or bridleway", and insert "relevant highway".
Amendment No. 39, in page 52, line 19, leave out from "is" to second "area" in line 20 and insert "in their".
Amendment No. 114, in page 52, line 19, leave out "both".
Amendment No. 115, in page 52, line 20, leave out— 'and in a designated urban area' Government amendments Nos. 231 and 232.
Amendment No. 116, in page 52, line 24, leave out "footpath or bridleway" and insert "relevant highway".
Government amendments Nos. 233 to 235.
Amendment No. 117, in page 52, line 35, leave out "footpath or bridleway" and insert "relevant highway".
Amendment No. 118, in page 52, line 36, leave out "footpath or bridleway" and insert "relevant highway".
Government amendments Nos. 236 to 238.
Amendment No. 119, in page 53, line 27, at end insert— '(8A) In this section "relevant highway" has the meaning given in section 119D(2).'. Government amendment No. 239.
989 Amendment No. 77, in page 53, line 29, leave out from "State" to end of line 30 and insert "under section 121F below".
Amendment No. 60, in page 53, line 31, leave out "118C" and insert "118B".
Government amendment No. 240.
Amendment No. 120, in page 53, line 34, leave out "footpath or bridleway" and insert "relevant highway".
Government amendment No. 241.
Amendment No. 121, in page 55, line 28, leave out "footpath or bridleway" and insert "relevant highway".
Amendment No. 92, in page 55, line 28, leave out from "footpath" to "that" in line 32 and insert— ', bridleway or restricted byway which is in their area, it is expedient, in the interests of preventing or reducing crime,'. Amendment No. 41, in page 55, line 28, leave out from "is" to second "area" in line 29 and insert "in their".
Amendment No. 122, in page 55, line 28, leave out "both".
Amendment No. 123, in page 55, line 29, leave out— 'and in a designated urban area'. Government amendments Nos. 242 and 243.
Amendment No. 124, in page 55, line 35, leave out "footpath or bridleway" and insert "relevant highway".
Government amendments Nos. 244 to 246.
Amendment No. 125, in page 55, line 49, leave out "footpath or bridleway" and insert "relevant highway".
Government amendment No. 247.
Amendment No. 126, in page 56, line 3, leave out "footpath or bridleway" and insert "relevant highway".
Government amendments Nos. 248 to 250.
Amendment No. 75, in page 56, line 20, at end insert— ', and which is substantially as convenient to the public'. Government amendments Nos. 251 and 252.
Amendment No. 76, in page 56, line 54, at end insert— '(e) the relative convenience to the public of the existing path or way and the proposed new right of way, and (f) the effect which the diversion would have on public enjoyment of the path or way as a whole.'. Government amendments Nos. 253 to 255.
Amendment No. 127, in page 57, line 17, leave out "footpath or bridleway" and insert "relevant highway".
Amendment No. 128, in page 57, line 21, at end insert— '(12A) In this section "relevant highway" has the meaning given in section 119D(2)'. Amendment No. 42, in page 57, leave out lines 22 and 23.
Amendment No. 78, in page 57, line 23, leave out "118B(9) above" and insert "121F below".
Government amendment No. 256.
Amendment No. 129, in page 57, line 27, leave out "footpath or bridleway" and insert "relevant highway".
Government amendment No. 257.
Amendment No. 130, in page 57, line 30, leave out "footpath or bridleway" and insert "relevant highway".
990 Government amendments Nos. 258 to 262, 265 to 270 and 272.
Amendment No. 79, in page 69, line 17, at end insert—

§ 'Designation orders 121F.—(1) The Secretary of State shall have power to make an order (in this section referred to as a "designation order") designating an urban area as an area in which sections 118B and 119B for the time being apply. (2) A designation order may be made only on the application of the local highway authority for the area which is the subject of the order. (3) Such an application must be made in such form and accompanied by such information as shall be prescribed. (4) Before submitting an application the local highway authority shall—

(a) give notice of its intention to submit an application;
(b) permit inspection free of charge of the application and supporting information;
(c) provide the opportunity for objections and representations to be made; and
(d) consult such bodies as may be prescribed;

in such form and manner as may be prescribed. (5) In his consideration of the application and any objections and representations made to the local highway authority the Secretary of State—

(a) may hold a public inquiry;
(b) shall be required to satisfy himself that the proposed designation is consistent with any strategy for the reduction of crime and disorder prepared under section 6 of the Crime and Disorder Act 1998;
(c) may reject the application or approve it in the terms of the application or such varied terms as he shall think fit but so that in the case of variation the area referred to in the order may not be greater than that referred to in the application.

(6) An order made by the Secretary of State under this section shall be accompanied by a plan showing the designated area and the routes of all the footpaths and bridleways within the area. (7) An order made by the Secretary of State under this section shall be for a period not exceeding five years, and the Secretary of State shall have power to make one or more further orders for subsequent periods, but only upon receipt of further application. (8) Where an order has been made by the Secretary of State the authority shall—

(a) publicise the making of the order; and
(b) keep available for public inspection free of charge a copy of the order and of the plan referred to in subsection (6) above in such a manner as shall be prescribed.

(9) In this section "prescribed" means prescribed by regulations made by the Secretary of State.'.

§ Mr. Meacher
I shall try to make the length of my speech inversely proportionate to that of the list of amendments. Government amendments Nos. 228 to 262, 265 to 270 and 272 arise from commitments that we gave in Committee to consider amendments tabled by the hon. Members for Somerton and Frome (Mr. Heath), for Ashford (Mr. Green), for South-East Cambridgeshire (Mr. Paice) and for Cotswold (Mr. Clifton-Brown)—in other words, a wide range of interests—that related to the provisions in new sections 118B and 119B for the closure or diversion of footpaths and bridleways to prevent crime in certain areas and to increase school security.
991 The core amendments have four main effects. First, amendments Nos. 230, 235, 241 and 246 deal with the powers to close rights of way in certain areas to prevent or reduce crime. In Committee, Conservative Members argued that those powers should not be confined to designated urban areas but should be available throughout England and Wales. As I made clear in Committee, the principal threats that the powers are intended to counter arise from the use of back alleys in built-up areas to gain access to premises. However, we accept that confining those powers to urban areas could exclude any smaller settlements in rural areas where there may be a case for them to be available. The amendments would therefore remove the word "urban", enabling the Secretary of State or the National Assembly for Wales to designate any area in which it appears to them that the powers should be available.

§ Mr. David Kidney (Stafford)
I thank my right hon. Friend for giving way, but he has hurt my feelings by not mentioning the many amendments to which I spoke in Committee on closing footpaths to prevent crime. The piece de resistance concerned the process of designating an area in which closures and diversions could take place. From my initial reading of that great list of Government amendments, I cannot see how my right hon. Friend intends to go about designating areas Will he refer to that?

§ Mr. Meacher
I certainly will, and I apologise to my hon. Friend because, entirely as he said, he did a great deal of work in Committee, particularly on that issue, and I am grateful for it. Indeed, the Government amendments reflect his input and I shall immediately explain what we are doing to designate.
Secondly, the same amendments clarify the grounds on which orders in designated areas may be made. They make it clear that these powers are intended to be used only where persistent and high levels of crime against properties next to a right of way are being generated by the access that the right of way gives. The powers to close or divert rights of way through school grounds to protect children and staff already apply to all schools in England and Wales, but, by their nature, these powers are site specific.
Thirdly, in line with the sites of special scientific interest provisions, the amendments provide that the powers under new sections 118B and 119B should lie with local highway authorities. Schools will also be able to apply for orders in respect of restricted byways and byways open to all traffic just as the Bill will enable them to make applications in respect of footpaths and bridleways. The remainder of the Government amendments in the group that I mentioned are consequential, or make minor drafting improvements.
Amendments Nos. 39, 41, 114, 115, 122 and 123 would make the powers to close or divert rights of way to prevent crime available throughout England and Wales. The key question is whether closing a right of way is an effective way of tackling crime in an area where criminals have a variety of means of gaining access to premises. That is the central issue with which we should be concerned. The public interest in reducing crime, which is considerable, has to be weighed against the public interest in losing a right of way. It is assessing that balance that has weighed with us.
992 It is worth noting that a consultation paper on road traffic law that was issued by the previous Government expressed the view that it is neither desirable nor appropriate for crime prevention to become a reason in itself for the permanent closure of rights of way. That is an important statement. By contrast, we have accepted that there may be a case for doing so in certain circumstances, but there needs to be strict safeguards and that is why we are insisting on a targeted approach—that is, a designation of areas.
Amendments Nos. 59 and 60 would remove the power to close rights of way to prevent crime and to protect children and staff in schools. The Bill already requires that, before closure should be contemplated, the local authority should consider whether there is a reasonably convenient alternative route and, if not, whether it would be reasonably practicable to divert the right of way. There may be cases—for example, in densely populated areas—where diversion is not an option.
We have introduced those crime-prevention powers only because we are persuaded that it is necessary for them to be available in certain circumstances as an additional weapon against crime. The provisions have been tailored to ensure, as far as it is possible to do so, that the powers are not abused and will not lead to widespread loss of rights of way, which are important to law-abiding people who use them.
Amendments Nos. 75 and 76 would introduce additional conditions to the making of a diversion order. Those reflect similar conditions relating to the convenience of the public and their enjoyment of the right of way in question. The tests would make it more difficult to divert a right of way to prevent crime or to protect a school. Perhaps my hon. Friend the Member for Denton and Reddish (Mr. Bennett) and my right hon. Friend the Member for South Shields (Dr. Clark) had that in mind, but there are associated problems.
One problem is whether, in view of the reasons for the diversion powers, it is appropriate to have additional tests. The second is that, given our view that there should also be powers to close rights of way for those purposes, we do not want to make it more difficult to divert a right of way. If we raise the tests on a diversion, a local authority may feel that it has no option but to go for closure. I am sure that that is not what my hon. Friend and my right hon. Friend intended.
Amendments Nos. 79, 77 and 78, which are consequential, would introduce an additional layer into the decision-making process, to consider whether a right of way should be closed or diverted to prevent crime. As I said in Committee, such additional procedures are not necessary.
We shall be consulting widely with local authorities and other bodies in designating areas in which the new powers are to be available. Given our additional amendments to the grounds on which orders may be made, I believe that there are sufficient safeguards in the system to ensure that thorough scrutiny will be undertaken before a right of way is closed or diverted for crime prevention purposes. I have carefully considered what my hon. Friend and my right hon. Friend said, but I hope that, in the light of the reasons that I have given, they will not press their amendments.

§ Mr. Green
It would be churlish of me not to welcome the Minister's conversion. Therefore, I do so. It is a 993 genuine step forward. The Under-Secretary of State for the Environment, Transport and the Regions, the hon. Member for Sunderland, South (Mr. Mullin), made the point that the Government have accepted many of the minor improvements that we have suggested, but that is the most significant change in the Bill so far. We should welcome it and we do.
The Minister was slightly scraping the barrel in going back to a consultation document on transport that was issued by the previous Government. We do not have to go that far back to find some interesting views. We have merely to go back to the Committee stage, when he said in opposing the amendments that we tabled to bring about this happy coincidence: There is no case for the powers to apply beyond urban areas … It is a question of targeting: we do not have the resources that we would all like to put into the police force. Risks of vandalism, burglary and vehicle-related theft were also lower for retail and manufacturing premises in rural locations. Burglary forms a smaller proportion of crime in rural areas than it does elsewhere.—[Official Report, Standing Committee B, s16 May 2000; c. 663.] Not just I and my hon. Friends but the hon. Member for Somerton and Frome (Mr. Heath) thought that the Minister was wrong. I am glad that he has joined us in rejecting those arguments, effectively saying—as the Government amendments, as well as our own, do—that rural crime is every bit as important as urban crime and that, even though the incidence in terms of the sheer quantum may be less—fewer people live in rural areas, which is what makes them rural, so fewer crimes are committed there—crime can be equally distressing to those who live there.
I will not attempt to deal individually with all the amendments in my name and those of my hon. Friends. There are 20 of them in the group. Essentially, they seek to equalise action to prevent rural crime and urban crime—the Government have accepted that—and to improve the definitions in the Bill by replacing the phrase "footpath or bridleway" with "relevant highway".
The Minister did not particularly deal with that. We are seeking simply to add consistency. In the Bill's provisions dealing with SSSIs, "relevant highway" is the definition that is used. We think that that would be the most appropriate definition to use in this part of the Bill, too. The Minister may believe that the Government amendments cover that. If so, I would welcome some indication of that when he responds to the debate.
I make two final points on what is an important group of amendments and an important concession. I note that amendment No. 239—which stands not only in my name and in those of my hon. Friends, but in the names of the hon. Members for Somerton and Frome and for Carshalton and Wallington (Mr. Brake)—has been expropriated by the addition of the Deputy Prime Minister's name to it, turning it into a Government amendment. That not only creates one of the most diverse group of bedfellows ever to appear on a Commons amendment paper, but shows admirable economy of effort on the part of the Government: they have stolen our amendments, rather than merely accepting them. However, in the interests of promoting better legislation, we are happy to lend our amendments, and our efforts to draft them, to the Government.
994 The Minister has already asked the hon. Member for Denton and Reddish (Mr. Bennett) not to press his amendments. There is a wider point. The Government are, I think, rejecting one of the bad arguments presented by the Ramblers Association, which, in its briefing, expressed concern about possible moves to extend provision for the extinguishment and diversion of footpaths beyond urban areas. I think that the association was wrong about that, and I am glad that the Government now agree with us.

6.30 pm

§ Mr. Bennett
I think that the Government are misguided. If we want to stop crime, why is it logical to specify footpaths rather than roads? In the area that I represent, far more burglars arrive at premises by road than arrive by footpath. Surely, if we want to reduce the incidence of crime, it is logical to close roads as well as footpaths—but, of course, it would be considered outrageous to give in to crime in that way.
When people have been burgled, they feel helpless. They want to blame someone, and they cannot necessarily kick the cat. The police tend to send an officer round—perhaps a crime prevention officer, and often a young officer. That officer will of course be tempted to agree with the distressed householder, and say, "Isn't it terrible—the burglars climbed over the back fence from the footpath." The blame is somehow shifted from the criminal to the footpath.
The Government are raising people's hopes by suggesting that closing footpaths will cut crime. That is nonsense. It is possible that, when a footpath is closed, a criminal will go to a different house, or will enter through the front rather than the back door; but I do not believe that closing footpaths will reduce crime in most instances. Indeed, in my area and, I suspect, that represented by the Minister, it may make life easier for criminals. In the case of many closed footpaths, there will not be barbed wire everywhere making access impossible.
Sometimes foot patrols are introduced. It does not happen often, but it happens a little in my constituency and the Minister's. The other day, a young officer told me that one way of cutting crime is to walk down unattractive passageways. Officers on the beat are looking for crime, but when the passageways have been closed they will have to obey the law that says that they cannot go on to private property unless they are invited, or can prove that a crime is occurring. They will no longer be able to nip along the passageway to see what mischief is going on; they will have to be certain that some mischief is going on before they can investigate the problem.
If we are to do anything at all, we should concentrate on diversion. In particular, we should consider diversions where new housing estates have been built. I can think of two cases in my constituency, and one in the Minister's, in which, to get the maximum number of properties on to new sites, builders arranged for footpaths to be diverted so that they went in at a right angle, went along behind some of the houses, and went out again at a right angle. That meant that there was a small area at the back that no one could look through—not a nice area for people to walk through when going to and from the shops. It is a pocket in which crime can occur.
I hope that the Minister will consider both the points that I have made. First, closing a footpath makes it even less likely that a police officer will go along it, secondly, 995 in the event of a diversion, it should be incumbent on the local authority agreeing to that diversion to take crime prevention measures to ensure that, once diverted, the footpath is less likely to encourage crime than it would have been if diverted in a slightly different way.
The Minister is raising expectations that, by taking away rights to footpaths, he will somehow have a significant impact on crime. He is giving way to pressure—to the suggestion that it is not possible to tackle the real issue, which is the criminal, so something should be done about footpaths. In practice, that will not work.

§ Mr. David Heath
I, too, welcome the Minister's conversion to the cause. I am glad that the hon. Member for Ashford (Mr. Green) drew attention to amendment No. 239. I was not remotely miffed to find that he and his hon. Friends had added their names to our amendment, and I am even more pleased to see it nationalised, although perhaps without compensation. I may have to look to my lawyers, if yesterday's debate is anything to go by.
The most important thing is the loss of the urban designation, which I think discriminated against rural areas. The Minister met with something of a rural backlash in Committee. The argument with which he was provided—that because there was a lower overall crime rate in rural areas, measures that might help to fight crime should not be applied there—was not entirely convincing. I am glad that he has seen the strength of the opposing argument.
Let me give at least a partial answer to the hon. Member for Denton and Reddish (Mr. Bennett). As I said in Committee, I hope that the power will be used sparingly. There will be few occasions on which it proves to be the right answer. The Government have seen the wisdom of requiring its use to comply with the locally derived crime and disorder strategy, which is a strong point in its favour. If it can help at all, let us support it.
I thank the Minister for his helpful letter about the definition of "school". I understand that there is a provision to enable the definition of a primary school to encompass nursery schools, although it does not encompass the pre-school facilities, playgroups and other nursery provision with which I was concerned in Committee.
I accept what the Minister said in his letter about why it would be difficult to formulate legislation encompassing all the different species. I understand that alternative arrangements can be used, and I am grateful to the Minister for taking the trouble to cover the points that I raised.

§ Mr. Meacher
It is always a cause of concern when changes made by the Government are solidly welcomed by the phalanxes of the Opposition, and rejected only by our own side. However, I believe that the welcome is justified. I shall try to persuade my hon. Friend the Member for Denton and Reddish (Mr. Bennett) of that, or at least to placate him a little.
The hon. Member for Ashford (Mr. Green) asked about the meaning of "relevant highway". The Government 996 amendments extend the provisions to cover restricted byways and BOATs; the effect is the same as that of the Opposition amendments. My hon. Friend asked whether the closure of footpaths would be affected in combating crime. I went to great lengths to make it clear that any diversions should be carefully restricted. I repeat that the powers are intended to be used only where persistent and high levels of crime against properties next to a right of way are being generated by the access that that right of way gives. Those are quite limiting conditions: they are not at all the basis for widespread diversions.
I also said that the Bill requires that, before closures are contemplated, the local authority should consider whether there is a reasonably convenient alternative route. If there is no such route, the authority must consider whether it would be reasonably practicable to divert the right of way.
My hon. Friend laid down two conditions for me. In answer to his first point, it seems slightly odd and rather double-edged to argue that footpaths assist burglars and criminals but that we ought to keep them open so that police officers can get to areas where they are likely to find and arrest burglars.
However, I was also asked to consider whether footpaths should be diverted only where there is good reason to believe that to do so would be likely to reduce crime. I share the concern expressed by my hon. Friend that the power that we are giving should not be used to provide indiscriminate opportunities for the closure of footpaths for other reasons that may be convenient to other parties. Use of the power has to be justified on the basis that it would have—or could reasonably be expected to have—a significant impact on crime.

§ Mr. Bennett
How do we reverse the process if crime is not reduced?

§ Mr. Meacher
If use of the power does not reduce crime, and there is a strong wish to restore a right of way or footpath, there is no reason why it cannot be restored. Local highways authorities are expected to make available plans for improvements to rights of ways. It is unlikely that the problem described by my hon. Friend would occur. However, if it was decided that an unwise decision had been made, that decision is certainly not irreversible.

§ Mr. Green
I am slightly worried that the Minister may be falling into a trap laid for him by the hon. Member for Denton and Reddish. It would be extraordinary if crime in rural areas were reduced by this measure. Crime is rising so fast in rural areas that any reduction in the increase would go against the trend of the past three years and would be an achievement in itself. The measure would be a success if it did no more than contribute to such a reduction.
The Minister should not be required to defend a non-reduction in crime. Policies for which he has no responsibility are contributing to the rise in crime in rural areas.

997

§ Mr. Meacher
Virgil wrote: Timeo danaos et dona ferentes. That can be translated as, "I fear the Greeks even when they are bearing gifts." The hon. Gentleman should not over-egg his argument. As I said in Committee, the level of burglaries in rural areas is only about a third of that in urban areas. It is true that the crime rate continues to rise in some areas, but it is doing so more slowly than over the past two decades.
The question is whether this is a sensible anti-crime measure. If it is not and does not meet the strict criteria that I have laid down, I do not believe that it will be pursued. It is certainly my intention that it should not be.
Amendment agreed to.
6.45 pm
Amendments made: No. 229, in page 51, line 6, after second "of" insert— 'a special diversion order or'. No. 230, in page 52, line 19, leave out from "that" to "of' in line 21 and insert— 'as respects any relevant highway for which they are the highway authority and which is in an area designated by the Secretary of State by order for the purposes of this section, the conditions in subsection (1B) below are satisfied and it is expedient, for the purpose'. No. 231, in page 52, line 23, leave out "path or way" and insert "highway".
No. 232, in page 52, line 24, leave out— 'footpath or bridleway in their area' and insert— 'relevant highway for which they are the highway authority and'. No. 233, in page 52, line 26, leave out "in the interests" and insert "for the purpose".
No. 234, in page 52, line 34, leave out "path or way" and insert "highway".
No. 235, in page 52, leave out lines 35 to 37 and insert— '(1A) In subsection (1) above "relevant highway" means—

(a) any footpath, bridleway or restricted byway,

(b) any highway which is shown in a definitive map and statement as a footpath, a bridleway, or a restricted byway, but over which the public have a right of way for vehicular and all other kinds of traffic, or

(c) any highway which is shown in a definitive map and statement as a byway open to all traffic,

but does not include a highway that is a trunk road or a special road. (1B) The conditions referred to in subsection (1)(a) above are—

(a) that premises adjoining or adjacent to the highway are affected by high levels of crime, and

(b) that the existence of the highway is facilitating the persistent commission of criminal offences.'.

No. 236, in page 52, line 41, leave out "path or way" and insert "highway".
No. 237, in page 52, line 45, leave out "path or way" and insert "highway".
No. 238, in page 52, line 47, leave out from beginning to end of page 53, line 19 and insert— '(6) The Secretary of State shall not confirm a special extinguishment order made by virtue of subsection (1)(a) above, and a council shall not confirm such an order as an opposed order, unless he or, as the case may be, they are satisfied that the conditions in 998 subsection (1B) above are satisfied, that the stopping up of the highway is expedient as mentioned in subsection (1)(a) above and that it is expedient to confirm the order having regard to all the circumstances, and in particular to—

(a) whether and, if so, to what extent the order is consistent with any strategy for the reduction of crime and disorder prepared under section 6 of the Crime and Disorder Act 1998,

(b) the availability of a reasonably convenient alternative route or, if no reasonably convenient alternative route is available, whether it would be reasonably practicable to divert the highway under section 119B below rather than stopping it up, and

(c) the effect which the extinguishment of the right of way would have as respects land served by the highway, account being taken of the provisions as to compensation contained in section 28 above as applied by section 121(2) below.

(6A) The Secretary of State shall not confirm a special extinguishment order made by virtue of subsection (1)(b) above, and a council shall not confirm such an order as an opposed order unless he or, as the case may be, they are satisfied that the stopping up of the highway is expedient as mentioned in subsection (1)(b) above and that it is expedient to confirm the order having regard to all the circumstances, and in particular to—

(a) any other measures that have been or could be taken for improving or maintaining the security of the school,

(b) whether it is likely that the coming into operation of the order will result in a substantial improvement in that security,

(c) the availability of a reasonably convenient alternative route or, if no reasonably convenient alternative route is available, whether it would be reasonably practicable to divert the highway under section 119B below rather than stopping it up, and

(d) the effect which the extinguishment of the right of way would have as respects land served by the highway, account being taken of the provisions as to compensation contained in section 28 above as applied by section 121(2) below.'.

No. 239, in page 53, leave out lines 28 to 30.
No. 240, in page 53, line 31, leave out from "council" to end of line 35 and insert— 'for the making by virtue of section 118B(1)(b) above of a special extinguishment order in relation to any highway for which the council are the highway authority and which—

(a) crosses land occupied for the purposes of the school, and

(b) is a relevant highway as defined by section 118B(1A) above.'.

No. 241, in page 55, line 28, leave out from "that" to "of' in line 30 and insert— 'as respects any relevant highway for which they are the highway authority and which is in an area designated by the Secretary of State by order under section 118B(1)(a) above, the conditions in subsection (1B) below are satisfied and it is expedient, for the purpose'. No. 242, in page 55, line 32, leave out "path or way" and insert— 'highway, or part of that line'. No. 243, in page 55, line 35, leave out— 'footpath or bridleway in their area' and insert— 'relevant highway for which they are the highway authority and'. No. 244, in page 55, line 37, leave out "in the interests" and insert "for the purpose".
No. 245, in page 55, line 45, leave out "path or way" and insert "highway".
999 No. 246, in page 55, leave out lines 48 to 50 and insert— '(1A) In subsection (1) above "relevant highway" means—

(a) any footpath, bridleway or restricted byway,

(b) any highway which is shown in a definitive map and statement as a footpath, a bridleway, or a restricted byway, but over which the public have a right of way for vehicular and all other kinds of traffic, or

(c) any highway which is shown in a definitive map and statement as a byway open to all traffic,

but does not include a highway that is a trunk road or a special road. (1B) The conditions referred to in subsection (1)(a) above are—

(a) that premises adjoining or adjacent to the highway are affected by high levels of crime, and

(b) that the existence of the highway is facilitating the persistent commission of criminal offences.'.

No. 247, in page 56, line 3, leave out from "such" to "as" and insert—

'(i) new footpath, bridleway or restricted byway, or

(ii) in a case falling within subsection (1A)(b) or (c) above, new highway over which the public have a right of way for vehicular and all other kinds of traffic,'.

No. 248, in page 56, line 7, leave out "path or way" and insert "highway".
No. 249, in page 56, line 13, leave out "path or way" and insert "highway".
No. 250, in page 56, line 16, leave out "path or way" and insert "highway".
No. 251, in page 56, line 31, leave out "and" and insert "or".
No. 252, in page 56, leave out lines 33 to 57 and insert— (9) The Secretary of State shall not confirm a special diversion order made by virtue of subsection (1)(a) above, and a council shall not confirm such an order as an opposed order unless he or, as the case may be, they are satisfied that the conditions in subsection (1B) above are satisfied, that the diversion of the highway is expedient as mentioned in subsection (1)(a) above and that it is expedient to confirm the order having regard to all the circumstances, and in particular to—

(a) whether and, if so, to what extent the order is consistent with any strategy for the reduction of crime and disorder prepared under section 6 of the Crime and Disorder Act 1998,

(b) the effect which the coming into operation of the order would have as respects land served by the existing public right of way, and

(c) the effect which any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it,

so, however, that for the purposes of paragraphs (b) and (c) above the Secretary of State or, as the case may be, the council shall take into account the provisions as to compensation contained in section 28 above as applied by section 121(2) below. (9A) The Secretary of State shall not confirm a special diversion order made by virtue of subsection (1)(b) above, and a council shall not confirm such an order as an opposed order unless he or, as the case may be, they are satisfied that the diversion of the highway is expedient as mentioned in subsection (1)(b) above and that it is expedient to confirm the order having regard to all the circumstances, and in particular to—

(a) any other measures that have been or could be taken for improving or maintaining the security of the school,

(b) whether it is likely that the coming into operation of the order will result in a substantial improvement in that security,
1000
(c) the effect which the coming into operation of the order would have as respects land served by the existing public right of way, and

(d) the effect which any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it,

so, however, that for the purposes of paragraphs (c) and (d) above the Secretary of State or, as the case may be, the council shall take into account the provisions as to compensation contained in section 28 above as applied by section 121(2) below.'. No. 253, in page 57, line 5, leave out "path or way" and insert "highway".
No. 254, in page 57, line 9, leave out "footpath or bridleway" and insert "highway".
No. 255, in page 57, leave out lines 16 to 23 and insert— '(12) Section 27 above (making up of new footpaths and bridleways) applies to a highway created by a special diversion order with the substitution—

(a) for references to a footpath or bridleway of references to a footpath, a bridleway, a restricted byway or a highway over which the public have a right of way for vehicular and all other kinds of traffic,

(b) for references to a public path creation order of references to a special diversion order, and

(c) for references to section 26(2) above of references to section 120(3) below.

(13) Neither section 27 nor 36 above is to be regarded as obliging a highway authority to provide—

(a) on any highway created by a special diversion order, a metalled carriage—way, or

(b) on a restricted byway so created, a carriage—way which is by any other means provided with a surface suitable for the passage of mechanically propelled vehicles."'.

No. 256, in page 57, line 24, leave out from "council" to end of line 28 and insert— 'for the making by virtue of section 119B(1)(b) above of a special diversion order in relation to any highway for which the council are the highway authority and which—

(a) crosses land occupied for the purposes of the school, and

(b) is a relevant highway as defined by section 119B(1A) above.'.

No. 257, in page 57, line 30, leave out "footpath or bridleway" and insert "highway".
No. 258, in page 57, line 47, leave out— 'where the council are the highway authority for the path or way' and insert— 'to the extent that the council are the highway authority for the highway'. No. 259, in page 57, line 49, leave out "path or way" and insert "highway".
No. 260, in page 57, line 51, leave out "where" and insert "to the extent that".
No. 261, in page 58, line 3, after "substitution" insert "(a)".
No. 262, in page 58, line 4, after second "order" insert "and (b) for references to a footpath or bridleway of references to a highway'.—[Mr. Meacher]

§ Mr. Tom Brake (Carshalton and Wallington):
I beg to move amendment No. 43, in page 58, line 16, leave out "significant damage" and insert "damage or disturbance".

§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this it will be convenient to discuss the following: Government amendment No. 263.
1001 Amendment No. 44, in page 58, line 22, after "damage", insert "or disturbance".
Government amendment No. 213.
Amendment No. 80, in page 59, line 39, after "that", insert— 'the path or way will not be substantially less convenient to the public in consequence of the diversion and that'.

§ Mr. Brake
The amendments have two main purposes—to ensure that disturbance to birds caused by people walking down highways can be a reason for making a site of special scientific interest diversion order, and to ensure consistency between schedules.
I shall take the second purpose first. Paragraph 28F of schedule 8 refers to "damage", whereas paragraph 119D of schedule 6 refers to "significant damage". The amendments would ensure that the reference in both cases would be to "damage".
I turn now to the first purpose of the amendments. A briefing from the Royal Society for the Protection of Birds gives three specific examples of the impact that disturbance can have on birds. It reports that a footpath runs along the top of a flood defence bank by the Ouse washes in Cambridgeshire, and that people on the bank are clearly visible to wintering, passage and breeding waders and wildfowl. A local tourism group proposes to use the bank as part of the Black Fen path. The RSPB believe that walkers on the bank who appear above the skyline will disturb birds on what is a site of special scientific interest.
A similar problem is reported at a place called Deadman's Grave, situated near the Norfolk/Suffolk border. The RSPB states that a footpath running through the area is likely to cause disturbance to breeding birds.
It is clear from case studies provided by the RSPB that birds can be disturbed at the sites mentioned in the briefing. There is therefore a need to ensure that the Bill takes account of both damage and disturbance. The RSPB states that, unless the amendment is accepted and the word "disturbance" is included in the Bill, it will not be possible to provide the special protection areas for birds required under the EU birds directive.
If the Minister does not accept the amendments, I hope that he will explain why he is happy with the discrepancy between schedules 6 and 8 that I have already described. If the word "disturbance" is not included in the Bill, will he say whether the Government will be able to comply with the EU birds directive?

§ Mr. Kidney
I wish to raise the issue of the convenience of walkers in connection with amendment No. 80. Will any alternative route that is the result of a diversion be as convenient for walkers as it can be, bearing in mind the need for the diversion in the first place?

§ Mr. Mullin
Amendments Nos. 43 and 44 would modify the new section 119D(1) in schedule 6 so as to enable highway authorities to make SSSI diversion orders in cases where "disturbance", as well as "damage", is resulting or is likely to result from use of a right of way. 1002 While I am sympathetic to the concerns about species being disturbed, we are not willing to accept the amendments.
The rights of way network and the SSSI regime have co-existed for a considerable period of time and—the two examples mentioned by the hon. Member for Carshalton and Wallington (Mr. Brake) notwithstanding—we do not believe that the use of rights of way causes significant problems in terms of disturbance to SSSIs. We see no grounds for including that as a reason for diverting a right of way to protect an SSSI, nor do we believe that it is necessary to meet obligations under the EC birds and habitats directive. In our view, the current test for a diversion, which is that use of the right of way is causing or is likely to cause significant damage to the site, provides all the protection needed.
It might be possible to argue that there are cases in which disturbance to the protected features of an SSSI is of such a type, or such a degree, that it would amount to "significant damage". The examples cited by the hon. Gentleman might come into that category. In such cases, the test would be met and a diversion order could be made. However, I have to stress that we think that such cases are likely to be very rare indeed.
Where the disturbance is temporary—for example, during the breeding season—it might be more appropriate to make a traffic regulation order rather than a diversion order. Again, we think that the powers should be used only rarely for this purpose.
Amendment No. 80 would prevent a right of way from being diverted to protect an SSSI if the diverted way were substantially less convenient to the public. The amendment closely resembles one tabled in Committee by my hon. Friend the Member for Stafford (Mr. Kidney), along with others that also sought to introduce a similar test of convenience for special diversion and special extinguishment orders for crime prevention and school security. The amendment goes in the opposite direction from those tabled by the hon. Members for Somerton and Frome (Mr. Heath) and for Carshalton and Wallington. Taken together, the amendments are a clear illustration of the conflicting objectives that we have to reconcile.
As we explained in Committee, we believe that in order to ensure against a possible breach of our obligations under the EC birds and habitats directive, the making of SSSI diversion orders cannot be made conditional on the diverted way being as convenient as the existing way.

§ Mr. Green
In Committee, my hon. Friend the Member for Cotswold (Mr. Clifton-Brown) asked how many traffic regulation orders had been made in the past three years. I believe that the Minister promised to let my hon. Friend and the Committee know. Is that information yet available?

§ Mr. Mullin
It is not available at the moment, but should it become available in the course of my remarks I shall ensure that it is smuggled to the hon. Gentleman. It may be that in some cases, in order to prevent significant damage to an SSSI, a right of way may have to be diverted in a manner that is less convenient than the existing right of way. As I have said, we believe the powers should be used only rarely, but if it is necessary to use them, we must be sure that they are effective in meeting EC obligations when those are involved. I hope that my hon. 1003 Friend the Member for Denton and Reddish (Mr. Bennett) and the hon. Member for Carshalton and Wallington will feel able to withdraw their amendments.
Government amendment No. 213 will remove the need for an SSSI diversion to be as substantially convenient to the public. It is necessary to ensure consistency with subsection (9) of new section 119D which, unlike section 119 of the Highways Act 1980, does not require that, before a diversion order can be confirmed, the confirming authority must be satisfied that the diversions will not be substantially less convenient to the public—that is for the reasons I have explained in relation to amendment No. 80. Government amendment No. 263 is a minor technical amendment which ensures that, in line with existing diversion powers, the SSSI provisions relate to the line or part of the line of a right of way.
News has reached me in relation to the point raised by the hon. Member for Ashford (Mr. Green), but I would not wish to raise the hopes of the hon. Member for Cotswold, because it says only that a letter is on its way. I am sorry to have to keep him in suspense.

§ Mr. Brake
I am happy not to press the amendments to a vote, but I shall provide the Minister with some additional information on disturbance for him to consider before the Bill goes to the other place. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 263, in page 58, line 19, leave out "highway" and insert— 'line of the highway, or part of that line'. No. 213, in page 59, line 6, leave out from "it" to end of line 7.
No. 264, in page 60, leave out lines 8 and 9.
No. 265, in page 60, leave out lines 35 to 40.
No. 266, in page 61, line 52, leave out ""to 119B"' and insert— '", 118A,, 119 and 119A"'. No. 267, in page 61, line 52, at end insert— '(2A) After that subsection there is inserted— (1A) Where a council are the highway authority for only part of a highway, the powers conferred on the council by sections 118B, 119B and 119D above are exercisable with respect to the whole of the highway, but subject to subsection (2) and only with the consent of every other council which is a highway authority for any other part with respect to which the powers are exercised."'. No. 268, in page 62, line 32, leave out "path or way" and insert "highway".
No. 269, in page 63, line 44, after "order"" insert "wherever occurring".
No. 270, in page 64, line 5, after "to" insert— 'special extinguishment orders, special diversion orders and'. No. 271, in page 66, line 5, after "public" insert "free of charge".
No. 214, in page 67, line 46, at end insert— '(2A) Where an appeal to the Secretary of State is brought under section 121D(1) above, the Secretary of State may not make or confirm a public path diversion order or special diversion order if it appears to him that— (a) work is necessary—

(i) to bring the new highway created by the order into a fit condition for use by the public, or
1004
(ii) to provide necessary facilities for the convenient exercise of the new public right of way,

(b) if the order were made, the work could not be carried out by the highway authority without—

(i) the consent of another person, or

(ii) any authorisation (however described) which is required by or under any enactment, and

(c) the consent or authorisation has not been obtained.'. No. 272, in page 69, line 11, leave out "path or way" and insert "highway".—[Mr. Meacher

§ Mr. Meacher
I beg to move amendment No. 215, in page 69, line 17, at end insert— '. After section 135 of the 1980 Act there is inserted— "Temporary diversion for dangerous works 135A.—(1) Where works of a prescribed description are likely to cause danger to users of a footpath or bridleway which passes over any land, the occupier of the land may, subject to the provisions of this section, temporarily divert the footpath or bridleway. (2) A person may not under this section divert any part of a footpath or bridleway if—

(a) the period or periods for which that part has been diverted under this section, and

(b) the period or periods for which any other part of the same footpath or bridleway passing over land occupied by him has been diverted under this section,

amount in aggregate to more than five days in any one calendar year. (3) Where a person diverts a footpath or bridleway under this section—

(a) he shall do so in a manner which is reasonably convenient for the exercise of the public right of way, and

(b) where the diversion is by means of a temporary footpath or bridleway, he shall so indicate the line of the temporary footpath or bridleway on the ground to not less than the minimum width that it is apparent to members of the public wishing to use it.

(4) This section does not authorise a person to divert a footpath or bridleway on to land not occupied by him without the consent of the occupier of that land and of any other person whose consent is needed to obtain access to it. (5) The person by whom a footpath or bridleway is diverted under this section shall—

(a) at least fourteen days before the commencement of the diversion, give notice of the diversion in accordance with subsection (6) below,

(b) at least seven days before the commencement of the diversion, publish notice of the diversion in a local newspaper circulating in the area in which the footpath or bridleway is situated, and

(c) displays such notices as may be prescribed at such places, in such manner and at such times before or during the diversion as may be prescribed.

(6) Notice under subsection (5)(a) above shall be given—

(a) to the highway authority for the footpath or bridleway,

(b) if the footpath or bridleway is on or contiguous with access land in England, to the Countryside Agency, and

(c) if the footpath or bridleway is on or contiguous with access land in Wales, to the Countryside Council for Wales.

(7) A notice under subsection (5)(a), (b) or (c) above shall be in such form and contain such information as may be prescribed. 1005 (8) If a person—

(a) in a notice which purports to comply with the requirements of subsection (5)(a) or (b) above, makes a statement which he knows to be false in a material particular,

(b) by a notice displayed on or near a footpath or bridleway, falsely purports to be authorised under this section to divert the footpath or bridleway, or

(c) in diverting a footpath or bridleway under this section, fails to comply with subsection (3) above,

he shall be guilty of an offence and liable to a fine not exceeding level 3 on the standard scale. (9) In this section— access land" has the same meaning as in Part I of the Countryside and Rights of Way Act 2000; minimum width" in relation to a temporary footpath or bridleway, means the minimum width, within the meaning of Schedule 12A to this Act, of the footpath or bridleway diverted; prescribed" means prescribed by regulations made by the Secretary of State. Temporary diversion for dangerous works: restrictions 135B.—(1) The person by whom a footpath or bridleway is diverted under section 135A above shall, before the diversion ceases to be authorised by that section, make good any damage to the footpath or bridleway resulting from the works mentioned in subsection (1) of that section, and remove from the footpath or bridleway any obstruction resulting from those works. (2) Any person who fails to comply with the duty imposed on him by subsection (1) above is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale. (3) The highway authority may make good any damage, or remove any obstruction, in respect of which any person has failed to comply with that duty and recover from that person the amount of any expenses reasonably incurred by them in or in connection with doing so. (4) Paragraph 3(1) of Schedule 12A to this Act does not apply in relation to any disturbance of the surface of a footpath or bridleway which subsection (1) above requires any person to make good; but paragraphs 7 and 8 of that Schedule apply for the purposes of subsection (3) above as if—

(a) references to the authority were references to the highway authority,

(b) references to the work were references to work carried out under subsection (3) above in relation to a footpath or bridleway, and

(c) references to the relevant land were references to the land over which the footpath or bridleway passes.

(5) The diversion of a footpath or bridleway under section 135A above does not—

(a) affect the liability of any person for anything done in relation to the path or way otherwise than for the purposes of or in consequence of the works mentioned in subsection (1) of that section, or

(b) authorise any interference with the apparatus or works of any statutory undertakers.

(6) Without prejudice to section 130 (protection of public rights of way) above, it is the duty of the highway authority to enforce the provisions of section 135A and this section.".'. Government amendment No. 215 gives effect to the commitment that we made on Second Reading to introduce provisions enabling land managers to divert rights of way temporarily for exceptional land management operations. Generally, we believe that temporary diversions to rights of way should be avoided as far as possible, because the public is entitled to reasonable certainty that a public right of way will be 1006 available for them to use. However, we accept that there may be instances when a diversion for a very short period—such as five days—would be a practical way to enable land managers to carry out certain operations with minimum inconvenience to the public, in particular when such operations are likely to cause danger to users of a right of way.
The new provisions would enable an occupier of any land over which a footpath or bridleway passes to divert it temporarily for up to five days a year. It would not be possible to divert a right of way on to another person's land without consent. The occupier would be required to notify the local highway authority in advance, advertise the intention to divert in a local paper, and place notices showing where the diversion would run. Those are obvious, common-sense requirements. Where the right of way passed over or adjoined land to which the public would have a right of access under part I, the occupier would also have to notify the Countryside Agency or the Countryside Council for Wales. This is a limited but sensible amendment and I commend it to the House.

§ Mr. Green
I have no wish to add to any problems that the Minister may have with his hon. Friends, but we think that this is a sensible improvement to the Bill. It was, as he said, raised in Committee, and it seems a sensible and practical way to deal with what could otherwise be a serious problem.
Amendment agreed to.
Amendment made: No. 273, in page 69, line 32, at end insert— '( ) after the definition of "cycle track" there is inserted— '"definitive map and statement" has the same meaning as in Part III of the Wildlife and Countryside Act 1981;";'.—[Mr. Meacher.]