PUBLIC RIGHTS OF WAY: DEFINITIVE MAPS AND STATEMENTS AND RESTRICTED BYWAYS

HC Deb 14 June 2000 vol 351 cc954-82

Amendment made.

No. 292, in page 45, line 30, at end insert— '( ) In subsection (3)(c)(i) for "a right of way to which this Part applies" there is substituted "a right of way such that the land over which the right subsists is a public path or, subject to section 54A, a byway open to all traffic".'.

No. 293, in page 45, line 41 after "ought", insert— ', subject to section 51A,'.

No. 294, in page 46, line 50, at end insert— 'Register of applications under section 53

53B.—(1) Every surveying authority shall keep, in such manner as may be prescribed, a register containing such information as may be prescribed with respect to applications under section 53(5).

(2) The register shall contain such information as may be prescribed with respect to the manner in which such applications have been dealt with.

(3) Regulations may make provision for the register to be kept in two or more parts, each part containing such information relating to applications under section 53(5) as may be prescribed.

(4) Regulations may make provision—

1. (a) for a specified part of the register to contain copies of applications and of the maps submitted with them, and
2. (b) for the entry relating to any application, and everything relating to it, to be removed from any part of the register when the application (including any appeal to the Secretary of State) has been finally disposed of (without prejudice to the inclusion of any different entry relating to it in another part of the register).

(5) Every register kept under this section shall be available for inspection free of charge at all reasonable hours.

(6) In this section— prescribed" means prescribed by regulations; regulations" means regulations made by the Secretary of State by statutory instrument; and a statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.".'.

No. 295, in page 47, line 13 at end insert— '3A. After section 54 of that Act there is inserted— "BOATs not to be added to definitive maps

54A.—(1) No order under this Part shall, after the cut-off date, modify a definitive map and statement so as to show as a byway open to all traffic any way not shown in the map and statement as a highway of any description.

(2) In this section "the cut-off date" means, subject to regulations under subsection (3), 1st January 2026.

(3) The Secretary of State may make regulations—

(a) substituting as the cut-off date a date later than the date specified in subsection (1) or for the time being substituted under this paragraph;

(b) containing such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the operation of subsection (1), including in particular its operation in relation to—

1. (i) an order under section 53(2) for which on the cut-off date an application is pending,
2. (ii) an order under this Part which on that date has been made but not confirmed,
3. (iii) an order under section 55 made after that date, or
4. (iv) an order under this Part relating to any way as respects which such an order, or any provision of such an order, has after that date been to any extent quashed.

(4) Regulations under subsection (3)(a)—

1. (a)may specify different dates for different areas; but
2. (b) may not specify a date later than 1st January 2031, except as respects an area within subsection (5).

(5) An area is within this subsection if it is in—

1. (a) the Isles of Scilly, or
2. (b) an area which, at any time before the repeal by section 73 of the 1981 Act of sections 27 to 34 of the National Parks and Access to the Countryside Act 1949—
1. (i) was excluded from the operation of those sections by virtue of any provision of the 1949 Act, or
2. (ii) would have been so excluded but for a resolution having effect under section 35(2) of that Act.

(6) Where by virtue of regulations under subsection (3) there are different cut-off dates for areas into which different parts of any way extend, the cut-off date in relation to that way is the later or latest of those dates.

(7) Where it appears to the Secretary of State that any provision of this Part can by virtue of subsection (1) have no further application he may by order make such amendments or repeals in this Part as appear to him to be, in consequence, necessary or expedient.

(8) An order or regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.".'.

No. 296, in page 47, line 13, at end insert— '. In section 55 of that Act (no further surveys or reviews under the National Parks and Access to the Countryside Act 1949), after subsection (6) there is inserted—

"(7) Every way which—

1. (a) in pursuance of an order under subsection (5) is shown in a definitive map and statement as a byway open to all traffic, a bridleway or a footpath, and
2. (b) before the making of the order, was shown in the map and statement under review as a road used as a public path,

shall be a highway maintainable at the public expense.

(8) Subsection (7) does not oblige a highway authority to provide, on a way shown in a definitive map and statement as a byway open to all traffic, a metalled carriage-way or a carriage-way which is by any other means provided with a surface suitable for the passage of vehicles.".'.—[Mr. Meacher.]

Mr. Andrew Hunter (Basingstoke)

I beg to move amendment No. 304, in page 47, line 15, at end insert— '(1A) In paragraphs (a) and (b) of subsection (1), the words from "so however" to the end of the paragraph are omitted in each case.'.

Madam Speaker

With this it will be convenient to discuss the following amendments: No. 305, in page 47, line 18, leave out from '(b)' to "'together' and insert— 'for the words from "so however" to the end of the paragraph there is substituted'.

No. 302, in schedule 7, page 75, line 12, leave out from "is" to first "to" in line 13.

No. 303, in page 75, leave out line 14.

No. 45, in page 75, line 14, leave out "prima facie".

No. 135, in page 75, line 32, at end insert— '(5A) A person shall be deemed to have and to always have had lawful authority if that person is driving a mechanically propelled vehicle on to or upon a way or track across common land in order to gain access to or egress from a dwellinghouse where the access is across that common land.'.

No. 136, in page 75, line 32, at end insert— '(5A) Where a way across a common has been used as the vehicular access to a dwellinghouse as of right and without the access having been called into question by proceedings for 20 years prior to 3rd November 1999 then any person shall have lawful authority to drive a mechanically propelled vehicle to and from the dwellinghouse.'.

Mr. Hunter

I want to speak to amendments Nos. 304, 305, 302 and 303, which were tabled by the hon. Member for North-East Derbyshire (Mr. Barnes). I added my name to two of them, but it was an act of incompetence on my part that I did not sign all four; I overlooked two. The hon. Member for North-East Derbyshire is understandably absent, and I send my best wishes to Mrs. Barnes for a full and speedy recovery.

Amendments Nos. 304 and 305 relate to schedule 5(4). The schedule amends the Wildlife and Countryside Act 1981. Amendments Nos. 302 and 303 relate to schedule 7(5) and would amend the Road Traffic Act 1988, albeit in a slightly different form from the substitution that the Bill proposes. The amendments arise from the long-standing, increasing and much-publicised problem of the abuse of rights of way by motorised vehicles. I have raised the subject twice in Adjournment debates, as well as on Second Reading.

The heart of the problem is the reclassification of RUPPs under the Wildlife and Countryside Act 1981. It is generally agreed that that Act has, sadly, failed to provide the necessary protection for our green lanes. It is also a legal minefield. Vast tracts of our green lanes are extensively damaged by abuse by motorised vehicles. Agricultural vehicles cause some damage, but the root cause of much of the abuse by motorised vehicles is the limitation of the reclassification process under the 1981 Act.

I share the opinion of the hon. Member for North-East Derbyshire that the Bill does not fully and adequately tackle the problem, hence the amendments. If the hon. Gentleman were here, he might have chosen to illustrate his general argument by referring to a specific episode, which happened in his constituency. Eight defendants appeared at Chesterfield magistrates court in November 1999, charged with driving on a bridleway—Grimsell lane, Holmesfield in Derbyshire. The case lasted for three days, and the defendants were acquitted.

Sergeant Harwood, who was involved in bringing the case to court, shared his thoughts on the subject with the hon. Member for North-East Derbyshire. He also wrote to me at some length; I greatly appreciated hearing from him. He argued that the Grimsell lane case clearly illustrates the problems of prosecuting illegal vehicular use of bridleways. The words "but no other" in the definition of bridleway in section 66(1) of the 1981 Act and section 192(1) of the Road Traffic Act 1988 constituted the sticking point.

The three words "but no other" put the onus on the prosecution to establish beyond reasonable doubt that no vehicular rights exist. That applies to every route on a case-by-case basis. Consequently, the prosecution of a relatively minor offence requires a disproportionate amount of time and effort, and detailed research into every route.

It is not surprising that the stipendiary magistrate at Chesterfield magistrates court lamented in his judgment on the Grimsell lane case: If the Definitive Map were indeed definitive, that would be an end to the matter. The same legal obstacle does not appear in the definition of footpath in the Road Traffic Act 1988.

The Grimsell lane case, and others, have shown that it takes considerably less evidence to introduce doubt into a criminal trial, and so win an acquittal, than it does to prove that vehicular rights exist. I am told that Derbyshire county council was aware of no evidence to prove vehicular rights on Grimsell lane even after extensive research in preparing for the case, which nevertheless went against them. The Chesterfield judgment is likely to prevent further prosecutions under existing legislation. It is that scenario, and others like it, that the hon. Member for North-East Derbyshire wants to address under the amendments.

As hon. Members know, schedule 5 will make procedural changes to the provisions of the Wildlife and Countryside Act 1981 on the circumstances in which the definitive map and statement can be modified when an illegal event has occurred. Reduced to simplicity, amendment No. 304 would add a new section that would further amend section 56 of the 1981 Act. Whereas the definition of bridleway under the Road Traffic Act 1988 assumes that there are "no other rights"—a tag that appears in section 192 without qualification—the same tag is qualified in the 1981 Act by the words without prejudice to other rights. Therefore, a prosecution that relies on reference to the definitive map, as distinct from section 34 of the 1988 Act alone, runs the risk of an even more uncertain platform. I was prompted to make that point by Mr. Graham Plumbe, who briefs me in detail on such issues.

Amendment No. 304 would provide an alternative and firmer foundation. It would tighten the inherited definition and remove the element of ambiguity. Amendment No. 304 is wholly consistent with the intentions stated in the Bill. Much the same argument can be applied to amendment No. 305, the purpose and effect of which would be to define further when a right of way is not open to mechanically propelled vehicles. It follows naturally from the previous amendment and is also consistent with the Bill.

Amendments Nos. 302 and 303 relate to schedule 7, which deals with the driving of mechanically propelled vehicles elsewhere than on roads. Their purpose and effect would be to promote the status of a definitive map and statement. That would be done by removing the let out without prejudice to section 51(1) of the Wildlife and Countryside Act 1981 and its fellow traveller unless prima facie evidence is adduced to the contrary, both of which are further enshrined in section 34 of the Road Traffic Act 1988.

The intention is simple: to make the definitive map definitive, and I have already referred to the uncertain platform for prosecution provided by section 34 of the 1988 Act. In other words, these amendments would make the definitive map and statement the deciding factors. It should be an offence to drive a mechanically propelled vehicle on a way shown on the definitive map as a bridleway, unless public rights for that purpose were shown to exist at the time of such use.

In short, all four amendments would provide essential protection for rights of way, facilitate enforcement against unwanted and illegal use by motorised vehicles and promote the intentions stated in the Bill. I commend the amendments to the Minister, and I hope that he will respond positively.

On amendments Nos. 135 and 136, which were tabled by my right hon. Friend the Member for North-West Hampshire (Sir G. Young), I have no intention whatever of stealing his thunder. If he catches your eye, Mr. Deputy Speaker, he will no doubt fully present the arguments for them. All that I wish to do in advance of his contribution is to declare my support for them. They deal with a problem to which I referred on Second Reading, when I drew the Minister's attention to the practice of common owners charging residents for access to their homes if their driveways pass over common ground. I encountered that practice in the village of Newnham in my constituency, where it causes some concern. The owners of common land demanded a charge of several thousand pounds, which the vendor of a house felt obliged to pay so that the purchaser could be assured of rights of access and egress.

On Second Reading in March, I was aware of only three or four similar instances in other parts of the country, but more have come to light since then. I warmly endorse the arguments that I anticipate my right hon. Friend will make in due course.

4.30 pm

Sir George Young (North-West Hampshire)

I thank my hon. Friend the Member for Basingstoke (Mr. Hunter) for his remarks. Perhaps he was the lightning before the thunder.

I should like to speak to amendments Nos. 135 and 136 in my name and in the names of some of my hon Friends and my parliamentary neighbour the hon. Member for Newbury (Mr. Rendel). The background to these two amendments is an Adjournment debate on 3 November last year. In a nutshell, a group of my constituents who have been living peacefully on or around Newtown common—one for 60 years and several others for more than 40 years—awoke up to find that a company called Bakewell Management had acquired ownership of Newtown common.

One resident received a letter dated 6 October 1999 from chartered surveyors acting for Bakewell. It said: As it appears that you and your visitors are driving over our client's land to reach your house, we are offering you an amnesty whereby you can come to a settlement with our clients at a favourable rate. That rate turned out to be 6 per cent. of the open market value of their home, provided agreement was reached before 15 November 1999. The letter helpfully added that, without agreement, it would be impossible to sell the property, and mentioned a figure in excess of 10 per cent. as being achievable.

In many cases, 6 per cent. could be £30,000. In a few, it would be a lot more. Many of my constituents are retired and cannot easily find such sums. They cannot sell their houses because they are, in effect, blighted until this problem is solved.

These constituents have had uninterrupted access from the main road to their houses for time immemorial. They bought their houses through solicitors to whom they paid professional fees, and the solicitors had done the searches with the local authority. None had revealed any problem, and nor was there a problem until two things happened. First, a court decision in 1993 and, secondly, the subsequent acquisition of the common by Bakewell, with a view to exploiting that decision.

I shall distil a complex problem into a sentence or two. A Court of Appeal decision in 1993—Hanning v. Top Deck Travel Group—gave a fresh interpretation of the law on vehicular access over common land. The court decided to deny access over a common to business premises by double-decker busses. Private cars and private houses were not considered, but are assumed to be similarly precluded from access by those who have studied the case.

The court decided that, because it had been illegal since 1925 to drive over urban and certain other common land, householders who had enjoyed free access could not acquire a prescriptive right through an illegal activity. Driving over the remaining common land was banned in 1930. The only way that a right to drive from a public road to one's property over common land can be secured is by getting an easement from the owner of the common. Bakewell bought Newtown common, and is now seeking to exploit the court decision by charging my constituents for something no one dreamed of charging them for before.

The Law of Property Act 1925 was never meant to stop people driving over a common to their home. It was intended to restrict members of the public from driving on commons while others were on the common for "air and exercise". Indeed, no one was prevented from driving to their houses across a common from 1925 until 1993, but this is the interpretation that we are now stuck with.

Initially, I pursued this matter with the president of the Law Society to see whether there was a way through, short of changing the law. In a letter dated 24 November 1999, he said: If the solicitors carried out all the normal searches and no problems with access were revealed, then the solicitors would not have been negligent. If there is not clear negligence and they are simply the victims of one of the more arcane aspects of our legal history, ie laws concerning common land, they may be left without redress. If that is the situation, then they have to look to Parliament to amend the appropriate law. That is what hundreds of people are doing.

Since that debate, it has become clear that Newtown common does not represent an isolated incident. I have had many letters from colleagues and members of the public. My hon. Friends the Members for Guildford (Mr. St. Aubyn) and for Surrey Heath (Mr. Hawkins) have been active in Surrey, and the Runton and district residents association, from the constituency of my hon. Friend the Member for North Norfolk (Mr. Prior), has written. My hon. Friend supports the amendments. Constituents in Pirbright, represented by my hon. Friend the Member for Woking (Mr. Malins), have also written. My hon. Friend the Member for Tewkesbury (Mr. Robertson) has a constituency issue, as has my hon. Friend the Member for South-West Hertfordshire (Mr. Page) in Chorleywood common. My right hon. Friends the Members for Bromley and Chislehurst (Mr. Forth) and for North-East Hampshire (Mr. Arbuthnot) and my hon. Friends the Members for Stratford-on-Avon (Mr. Maples) and for Beaconsfield (Mr. Grieve) are all concerned.

Mr. James Paice (South-East Cambridgeshire)

As you cannot do so, Mr. Deputy Speaker, I should say that I recollect that the same problem arises in an area in your constituency, which I represented in local government in Suffolk.

Sir George Young

I am grateful to my hon. Friend for that information. No doubt the debate will take place in an even more respectful atmosphere.

I raised the matter in a debate last year, in response to which the Under-Secretary, the hon. Member for Sunderland, South (Mr. Mullin), could not have been more helpful. He said: The situation that the right hon. Gentleman has described seems, on the face of it, to be outrageous. He was kind enough to add: Were our roles reversed, I might well have made a similar speech. He went on to say that although Bakewell may well have the letter of the law on its side, I wonder whether it is able to defend its position morally, as well as legally. He agreed that in some ways, common land law is ripe for review and went on to suggest that there may well be a case for placing some reasonable limit on the charge that the owner is entitled to make. In connection with that, he said: I shall watch with interest the level of charges that Bakewell imposes and compare them with the reasonable charges for similar access made by county councils and the National Trust.—[Official Report, 3 November 1999; Vol. 337, c. 271–74.] In fairness to the Minister, although he said that the law was ripe for review, he made no commitment to legislation, but offered to meet me to discuss the matter further. I met him on 14 December, with members of the Newtown residents association, and again he could not have been more sympathetic. He made the valid point that any solution must deal with the problem not just at Newtown common, but elsewhere. He advised my constituents not to waste money on barristers at that stage because there was sufficient expertise in the Department of the Environment, Transport and the Regions for free.

The Minister offered a further meeting with officials, which took place in my room at the House on 20 January. A number of possible amendments were discussed. We were told that he remained keen and sympathetic, but we got a clear message that options that involved no payment at all risked running foul of the European convention on human rights. That strikes me as a pessimistic interpretation of the ECHR, and one of my hon. Friends who knows more about the law than I do may develop the point.

Rights can of course be acquired by long usage. Generally, if a person uses a route to get to his house without the permission of the landowner for 20 years, he has an easement. The Court of Appeal case that stops that on commons was concerned not with protecting landowners' rights, but with enforcing the public law on commons. The partial reversal of the Hanning principle, which I propose, would allow normal land law principles to apply. It is not apparent that human rights problems will occur.

The discussion with officials was helpful and, without commitment, they identified a number of possible solutions, on which I and my constituents have done further work. As recently as 14 April, a senior official in the Minister's countryside division wrote to one of my constituents, Mrs. Ponting, saying: In the meantime, you may like to be aware that, following discussions between Chris Mullin and Sir George Young, the department is investigating how we might curb the ability of landowners to make excessive charges for the grant of easements to allow vehicular access over common land. We have identified a range of options which may achieve this objective, but have not reached any firm conclusions yet on the best way forward. Against that background, the House might hope that the Minister will smile on the amendments. However, more recently, the Department's tone has changed from, "How can we help?" to, "I am sorry, it is all too difficult." Less than a month after the letter from which I have quoted was written, the deal was off.

The Minister wrote to me on 10 May saying: Given that the issues will be explored, in due course, in the context of the consultation paper on common land I do not propose to ask my officials to do any more work on the options at present, although they remain "on the table. He went on to say that, although it was open to me to table an amendment to the Bill, it would be misleading of me to suggest it is likely to receive Government support. That is disappointing against the background of the supportive remarks that were made earlier. While the proposals remain on the table, my constituents remain on the rack. The consultation paper that the Minister refers to, in the words of a letter that he wrote to me on 17 February, does not deal with the problems of vehicular access. The negative message in the Minister's letter obscured some helpful passages, which indicated the sorts of solution that would be acceptable to him: A reasonable capital charge would be no more than 5 per cent. of the value of the property. Discounts for those who could show long use. The option of payment now or at a time of sale. Provision for those who could show financial hardship. No question of vehicular access being denied whilst negotiations take place. That forms the foundation of an acceptable solution to the problem, but we should tackle the problem here and now. The Bill already makes substantial changes to the law on commons: it provides a right of public access to rural commons; it amends provisions on vehicles on commons. The Minister wants me to wait, but Bills on commons are a rare species—rarer even than nature conservation Bills. There were only three in the past century. No way should my constituents have to wait for a legislative bird in the bush when there is one in the hand. Therefore, I want to build on the principles in his letter and to come to a legislative solution to the problem in the context of the Bill.

Amendment No. 135 simply restores the position to what it was thought to be before Hanning v. Top Deck Travel Group—in other words, nothing is payable and people have the right that they all thought they had. Amendment No. 136 adopts the conventional 20-year rule for establishing rights of access. From the date of my Adjournment debate, anyone who had been driving backwards and forwards would continue to have that right.

The present position is wholly indefensible, as the Minister has conceded. A third party, using a loophole in the law, can claim part of the equity of someone else's house. That is feudal, with overtones of the sheriff of Nottingham. A Government who have abolished most of the hereditary peers should be able to take removal of that relic from the middle ages in their stride. They should certainly be able to back the many against the few.

My amendments are in order; they have been selected; they are urgent. We know that they have the Minister's sympathy. I am prepared to accept that they may not be the last word in technical perfection—they are from the do-it-yourself school of drafting, rather than the traditional parliamentary draftsman. I am prepared to consider withdrawing them and to share the credit for putting the anomaly right with the Minster in return for undertakings that the Government will come up with their own solution in another place. If the Government were able to do that, it would represent an acceptable outcome of today's debate, but, if no undertaking were given, I regret that I would feel obliged, out of commitment to my constituents, to divide the House.

Dr. David Clark (South Shields)

I shall speak to amendments Nos. 304 and 305, which were so eloquently introduced by the hon. Member for Basingstoke (Mr. Hunter), but, first, I compliment the right hon. Member for North-West Hampshire (Sir G. Young). He has raised an issue that has much wider ramifications than Ministers or even other Members realise. It is not confined to the leafy south. A major problem of that nature is emerging in the north of England, where, traditionally, village greens are surrounded by artisans' houses.

Often, there is a strip of green between the road that goes around the village green and the egress from the properties. The problem is that, although that has not been challenged for perhaps two or three centuries and although there is not the threat from commercial ventures, as there is in the right hon. Gentleman's constituency, there is now a legal problem. Lawyers are coming to people who are selling their houses and saying, "There is a problem. Do you realise that you have no vehicular right of access to your house? The two-yard stretch of green over which you and your predecessors have crossed for two or three centuries is not actually a right of way." That causes a great deal of difficulty. I assume that amendment No.135, which relates to common land, includes village greens, but that is a technical point that we need to consider.

4.45 pm

Anyway, the only way of getting round the problem is for the vendor to take out a large insurance bond to cover a future buyer in the light of the potential threat. The position is clearly not satisfactory. The right hon. Gentleman suggested that returning to the position that obtained before an earlier judicial decision would solve the problem. That is a simple solution, although I do not know whether the Bill is the right vehicle for it. Certainly, the right hon. Gentleman has drawn attention to a difficulty that is much more widespread than people realise, and is causing anguish throughout the country.

Let me return to amendments Nos. 304 and 305, which, as I have said, were presented elegantly by the hon. Member for Basingstoke. I join him in sending good wishes to my hon. Friend the Member for North-East Derbyshire (Mr. Barnes), whom I know would have liked to be here to move his amendment.

The amendments raise issues that have wide ramifications. The hon. Gentleman mentioned an incident that took place largely in his constituency, involving vehicular rights over various types of path covered in the Bill. As chair of the all-party national parks group, I plead with the Minister to see if there is any way of tackling the problem affecting national parks. By definition, they are special places where people go for quiet enjoyment.

The Bill recognises that but it is far from perfect, as has been pointed out by the Association of National Park Authorities, which represents all the statutory national parks.

There is a particular difficulty in some of the busiest parks, which have already tried to address the problem of vehicular access to various country byways. The park authorities believe that the powers in the Bill are not sufficient to enable them to tackle the problem and to fulfil their remit. I know that they have met Ministers, and that Ministers have been concerned and conciliatory. They are trying to find a way to help, and we all appreciate that.

Amendments Nos. 304 and 305 raise the question whether further traffic regulation orders could be available to national park authorities, enabling them, for instance, to create zones within which such orders would apply to specific routes, and to erect barriers across routes subject to the orders or, perhaps, voluntary restraint agreements to facilitate effective management.

There might be a facility for the revising and designing of materials used for the erection of signs, acknowledging the existence of special landscape requirements on some of the routes involved. It could, perhaps, be recognised that bona fide users of those routes—mainly local people—may want vehicular access in order to go about their daily business. There might be a licence system giving specified users defined routes to use, subject to the traffic regulation orders and within defined traffic regulation zones.

Finally—I think the amendments try to lead us towards this—the Association of National Park Authorities could be empowered to make enforced traffic regulation orders in regard to unsealed, unclassified county roads and byways open to all traffic, roads for public paths, bridleways and footpaths.

The Minister may not be able to give us a definitive answer today, but there are real problems with which the Bill does not quite come to grips. I believe that the Minister and his officials are working on them, and that we are nearly there. If the Minister does not feel able to accept the amendments, perhaps he will seek ways in another place to meet the legitimate concerns of the national park authorities. Those authorities are trying to perform the difficult task of balancing people's wish to go to rural areas, especially national parks, for quiet recreation with the legitimate right of local people to go about their daily business.

Mr. David Heath

Before I speak to amendment No. 45, I wish to say that the right hon. Member for North-West Hampshire (Sir G. Young) made an extremely persuasive case for his amendments. I had a similar case in the village of Long Sutton in my constituency, where a redundant school bordered a village green. There was no vehicular right of access, even though people had gained access across the green for very many years. That proved to be a substantial difficulty when the county council tried to dispose of the property for residential use. I therefore have sympathy with the amendments, and look forward to the Minister's reply.

Amendment No. 45 also deals with the vexed question of the Grimsell lane case, which was referred to by the hon. Member for Basingstoke (Mr. Hunter). I shall not rehearse those arguments, save to say that there is clearly a problem in enforcing section 34 of the Road Traffic Act 1988. The prosecution in the Grimsell lane case was required to prove beyond reasonable doubt that no higher vehicular rights existed than those that were marked in the categorisation of the road. The Minister has moved to address that matter, which we discussed in Committee. He tabled amendments in Committee, providing that a court would consider categorisation as a bridleway or footpath as substantial unless prima facie evidence were adduced to the contrary.

In Committee, I pointed out that prima facie evidence is the lowest level of evidential burden. As a result, any prima facie evidence given to the court by the defendant when a prosecution is brought immediately reverses the burden of proof. The prosecution then must prove beyond reasonable doubt that no higher rights exist. That seems to me to be wrong.

Deleting the words "prima facie" would mean that a more substantial burden of proof would be required. That would assist the court and the prosecuting authorities, but it would not deny anyone the right to prove substantively—if they can—that a vehicular right exists. The amendment would simply make the process more transparent, and that seems a worthwhile objective.

I commend the amendment to the House.

Mr. John Maples (Stratford-on-Avon)

I support amendments Nos. 135 and 136, which are in my name as well as that of my right hon. Friend the Member for North-West Hampshire (Sir G. Young). The legal situation in Claverdon, a village in my constituency, is very much the same as the one described by my right hon. Friend, except for the fundamental difference that the common is now owned by the parish council.

About 20 houses were built on the common in the latter years of the 19th century. The manor and the common were sold in 1876, at which time the landowner gave the people who lived in those houses the option to buy. By 1880, all had done so.

Some of the houses have been added to since they were bought 120 ago years, with planning permission in many cases. By the time the Law of Property Act 1925 became law, the owners had probably established an easement or right of way across the common land to the houses. However, that is impossible to prove, as the houses have had many owners since.

As my right hon. Friend the Member for North-West Hampshire said, the section of the 1925 Act that creates the problem was intended to keep vehicles off commons when those commons had been dedicated to public use. The aim was to allow people to use and enjoy the commons without others driving vehicles across them. It was never intended to deprive people who had a right of way to their homes of that right of way, but that was the effect.

The 1925 Act creates a criminal offence that is also included in the various Road Traffic Acts. After section 193 of the 1925 Act came into operation, it was impossible to acquire a right of way by claiming prescriptive use over 20 years. Therefore, the technicality means that one can prove 20 years of continuous use only before 1925.

That problem did not bother anyone for years, certainly not in Claverdon. In 1950, the then lord of the manor gave the common to the parish council. People continued to use the common to drive to their houses and back, and indeed the parish council, when asked its opinion on various planning applications to build garages alongside the houses, raised no objections. Therefore, no problems had arisen since the parish council acquired title in 1950.

Two years ago, a firm of solicitors from Swansea, Edward Harris and Son, entered on the scene. I know that lawyers have to make a living and I made one myself as a lawyer for a while, and benefited from many of the restrictive practices with which that profession is endowed. However, ambulances must be in short supply in Swansea, because in 1998 the firm advertised its expertise on this issue and invited the owners of commons to contact them, which Claverdon parish council did.

The solicitors pointed out the anomaly in the law and the fact that the home owners did not have rights of way and, therefore, the parish council could charge them for rectifying the situation. The parish council, instead of approaching all the home owners and offering to accept £1,000 or £2,000 to cover the documentation and provide some benefit to the community, waited until the first house came up for sale. It used an estate agent in Stratford-on-Avon to watch the market until one of the houses came up for sale. The house in question was being auctioned, and the owner was desperate to sell it, for various reasons. The parish council managed to extract—should I say, extort—£30,000 from him, on the basis that that was one third of the development value of the land or roughly 10 per cent. of the value of the house and the land.

Another constituent, a Mr. Baker, came to see me with a similar problem. His house was up for sale and the parish council had waited to contact him until he had advertised it. His negotiating position must have been slightly stronger, because he managed to negotiate the sum down from £30,000 to £2,000. Therefore, a wide range of prices has already been accepted and, indeed, the parish council settled with someone else for £1,000. However, now it has written to all those involved and suggested that the right value is a third of the development value of the land, which in many cases is probably around £20,000 to £25,000.

The parish council is in a difficult position because it is under an obligation, under the Local Government Acts, to extract best value for property that it sells. The parish council would probably prefer to be more reasonable, but it cannot, given the aggressive legal advice that it has received. Most owners would probably pay a small sum of money to sort out the position.

I suggest to the Minister that the situation constitutes a manifest injustice. As a result of an anomaly in the law, people are being asked to pay 10 per cent. of the value of their properties, at a vulnerable time—perhaps they have already bought another house and need to complete a chain—and many of them simply cannot afford to do so. They cannot prove that they acquired prescriptive rights by the time the Law of Property Act 1925 came into operation and they know that the parish council never previously challenged their rights to pass over the land. An outrageous injustice is being perpetrated on people in my constituency and that of my right hon. Friend the Member for North-West Hampshire. I suspect that many other hon. Members will find a similar situation in their constituency.

The problem can be resolved only by the Government. The amendments tabled by my right hon. Friend would resolve it, as he explained, and there may be other ways to solve it that might be more acceptable to the Government. For example, the House could fix the price or provide that the price should be fixed by the Lands Tribunal. We could also provide that if any of the properties came up for sale, some percentage of the value would apply, according to the length of time that the owners could prove that they had exercised the right of way. That has happened with some National Trust properties, which have a sliding scale from nothing to 5 per cent. If there is a problem with the European convention on human rights and some compensation for the loss of rights has to be paid, those options may be more acceptable. Whatever happens, we must resolve the issue quickly because it is causing great difficulties for many people.

As the common in my constituency is owned by the parish council, there is another way out of the problem and I hope that the Minister will address the possibility of dealing with the issue under the Local Government Acts. Section 127 of the Local Government Act 1972 requires a parish council to obtain best value for any property that it sells, unless it receives the consent of the Secretary of State to sell for less.

In 1998, the Secretary of State published regulations entitled "The Local Government Act 1972 General Disposal Consents 1998". Regulation 6 states that consent is given to a disposal of land by way of the grant of a right of way where the difference between the market value of the property and the price charged is less than £10,000. In this case, I do not know whether the difference is more or less than £10,000. If the proper value is £25,000 or £30,000, clearly it is more; if the value is 2 or 3 per cent, it would be less.

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Would the Minister consider, in the case of commons owned by parish, district or county councils, amending regulation 6 of the general disposal consents regulations to raise the value in the case of rights of way over commons being sold by parish councils that own those commons when clearly they have been in use as a right of way for more than 20 years?

I hope that the Minister will be able to accept amendments Nos. 135 and 136. If not, I hope that he will be able to say that he might accept other, similar amendments in another place and during our further consideration of the Bill. I should be grateful also if he would deal with the specific matter of whether, in the case of commons owned by parish or district councils, the general disposal consent regulations could be amended in such a way as to allow the grant of those rights of way for a relatively modest sum.

Mr. David Prior (North Norfolk)

It is a great privilege to support amendments Nos. 135 and 136, which were tabled by my right hon. Friend the Member for North-West Hampshire (Sir G. Young), other colleagues and me. This debate provides us as Members with an opportunity to right a wrong that anyone with common sense would think was an injustice.

We would not be having the debate were it not for the fact that there was a loophole in the Law of Property Act 1925 which has come to light because of a 1993 Court of Appeal case, Hanning v. Top Deck Travel Group. I suspect that, initially, like many other hon. Members, I thought that that case dealt only with an arcane legal point that would have no specific or important ramifications. However, the case's implications for householders and owners of common land have been profound.

At a stroke, householders have discovered that they no longer have vehicular access to their homes which many of them have enjoyed for many years or, in some cases, for generations. Landlords have suddenly discovered that they now have an economic interest that they had not known about before. It was a windfall for landlords, but a financial disaster for a great many householders—I imagine many of them still do not know about the financial disaster.

I heard about the issue only at the end of last year, when my right hon. Friend the Member for North-West Hampshire initiated an excellent Adjournment debate on it. However, the full seriousness of the issue did not come home to me until I came across a case in my own constituency, in East Runton and in West Runton, where a landlord owns the common land and has written to all the householders around it, of whom there are a great many. The common land is held within a trust.

I should quote to the Minister exactly what the landlord said in his letter—which is instructive—to the householders. He said: The trustees have recently been made aware, by their solicitors, that there are new legal guidelines about vehicular access over common land following … (Hanning v. Top Deck Travel Group.) In simple terms the court decided that because it has been illegal since 1925 to drive over common land then householders could not acquire a prescriptive right through an illegal activity … Recently mortgage lenders have become reluctant to provide finance for purchasers of this type of property unless an express right of way has been granted. This has meant that some people were experiencing difficulties in selling their properties. So the Gresham Estate— which is the owner of the common land— now has to find a way for homeowners selling their properties to obtain a formal easement … The District Valuer has indicated that he considers, that a reasonable charge for this type of right of access is 10 per cent. of the property value. Other owners of common land charge much more than this figure (up to 30 per cent.) … As trustees we have a legal duty to obtain "best value" for any assets that we sell so it would not be possible to charge less than the 10 per cent. mentioned above. I accept that there are various types of landlords—be they like Bakewell Management, in North-West Hampshire, the Gresham estate, in Norfolk, the National Trust, parish councils or county councils. Some of these people will have fiduciary responsibilities, but I hope that none will seek to hide behind a legal structure to avoid what is clearly a moral responsibility.

I have spoken with Runton parish council, the Runton residents association and the Runton commons management group. They all believe that an injustice is being perpetrated in North Norfolk. Very few households can face a potential liability, coming out of the blue, of up to 10 per cent. of the value of their house. The chairman of the residents association made this comment: Others including ourselves who have retired here will have to use our savings that was for our old age but some of our residents may not even be in a position to do this. In addition, this has cast a blight over many properties that would otherwise have been sold in the area, and it will continue to do so until the position is satisfactorily resolved.

No one is saying that there should be free car access or vehicular access over the commons, nor that the commons should not be properly managed. We are talking about an established access to a dwelling house. The amendments are about fairness, common sense and justice.

Mr. Douglas Hogg (Sleaford and North Hykeham)

I agree with an awful lot of what my hon. Friend has said, but I have been asking myself this question: why is the amendment confined to access to or egress from a dwellinghouse? Should it not apply to land generally? I can imagine, for example, agricultural holdings that are in the same position as a dwelling house. I am not sure why we should confine the proposal to a dwelling house and not extend it more generally.

Mr. Prior

I am glad that my right hon. and learned Friend made that point. The proposal could apply to a market garden or an agricultural holding. Whether or not the Minister decides to accept the amendment today, my right hon. Friend the Member for North-West Hampshire made it clear that this was from the DIY school of drafting amendments. We hope that we might clarify the proposals in further discussions with the Minister. The point made by my right hon. Friend is valid, and we will want to take it further.

I am sure that the Minister would like to accept the amendment—I noticed that he smiled during my right hon. Friend's speech. I hope that the Minister will be moved by the plight of many ordinary householders who are extremely worried about the situation.

Mr. Dominic Grieve (Beaconsfield)

I, too, support amendments Nos. 135 and 136. I, too, have constituents who have a similar problem. In Gerrard's Cross in my constituency, there is a common. Its ownership, in terms of the lordship of the manor, passed by purchase in the 1940s to a solicitor, for the sum of £100. His son is also a solicitor, and appears to enjoy his title of lord of the manor. When he realised and appreciated the benefits conferred on him by the 1993 case, he started to demand from householders with homes around the common extortionate sums to grant them easements and rights of way over the common land. I am quite satisfied, from looking at the properties, that most of them date from the 19th century and earlier, and that the occupants therefore almost certainly had rights of way over that land prior to the implementation of the Law of Property Act 1925, with its unintended consequences.

I have only one disagreement with my right hon. Friend the Member for North-West Hampshire (Sir G. Young), who made a slight complaint at the end of his speech about a feudal system. In fact, the irony of the situation is that the old law, being the common law tempered by equity, worked perfectly well to give rights of access. A piece of unintended statutory interference has deprived these people of rights which they would normally have had.

It beggars belief that the lord of the manor said in a recent comment in the local press about demanding this money: It is a fact of life. I think people should pay. I don't think people should have something for nothing. It appears that the person who is getting something for nothing is the lord of the manor, who is making these extortionate demands.

It is on that simple point that I base my contribution. I understand that the Minister has been advised—or that he is concerned—that the European convention on human rights and the Human Rights Act 1998 might prevent an amendment of the law unless compensation was paid in such cases. I appreciate that the point is important and that he will want to take advice, but it seems that, if anyone were to be entitled to compensation—if the passage of the Law of Property Act had taken place yesterday—it would have been the householders involved, who would not have acquired a 20-year period in which to obtain their easement.

In those circumstances, I am by no means convinced of the necessity to make payments to the property owners or to the lords of the manor just because they have benefited from a wholly unintended windfall. It is surprising that they should be paid for the removal of that windfall, which was not apparent when the legislation came into being.

Mr. Hogg

My hon. Friend makes a serious point about compensation. Another approach might be that, as the windfall is the unintended creation of statute, if compensation has to be paid by reason of the convention, it should be paid by the taxpayer to the person who is trying to obtain payments from the householders.

Mr. Grieve

My right hon. and learned Friend makes a good point. However, it is one that I skated over, because the mere suggestion of that idea to the Minister—and certainly to his advisers—might create even greater difficulties.

The matter is urgent. Every day, householders on Gerrard's Cross common face a severe financial problem. Some of them might be wealthy, but although many of them occupy properties that have a substantial value, their liquid assets do not—that is often true of elderly people. They face real problems.

We cannot merely say that we will leave the matter for three or four years. The situation existed for only 12 months before lords of the manor began to cotton on to the financial possibilities. Considerable chaos will be created by delay. I hope that the Minister can reassure us that the problem will be addressed—in some form—in the Bill.

Mr. David Rendel (Newbury)

I start by declaring an interest; I am a member of GLEAM—the Green Lanes Environmental Action Movement—an organisation that campaigns in favour of green lanes. I support the attempts of the hon. Member for Basingstoke (Mr. Hunter) to ensure that green lanes are not constantly destroyed by motorised vehicles, as has happened all too often in the past.

Like many other Members, the main thrust of my remarks is to support amendments Nos. 135 and 136. The first instance of this problem may have occurred in my constituency—at Bucklebury common. The common has been in the ownership of a well-known local landowner for a long time. However, back in 1929, his predecessors set up a special commons scheme, under which the management of the common and all the worry of looking after it were transferred to the local council. Since then, the owner and his family have had no involvement with the common except ownership.

Unfortunately, as the local council discovered, although the worry and problems of upkeep of the common were transferred to the council, the right to grant easements and access over it was not. Over the years, easements were granted by the current landowner's predecessors to those who own dwellings on or around the common. During the early years, the sums were in the tens or the low hundreds—only occasionally rising to about £1,000.

The current landowner inherited the property in 1993 and immediately changed the policy. Instead of charging comparatively small sums for the access required by those who own dwellings on the common, he asked for tens of thousands of pounds. The highest sum paid over so far is more than anything that has been mentioned in the debate: one owner was forced to pay as much as £50,000 for access to his property.

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As was mentioned in the Stratford-on-Avon case, these demands are usually made at the very last moment, when the dwelling owner is on the point of selling a property—perhaps under difficult circumstances, in which they simply cannot afford not to go ahead with the sale. That puts them in an extremely difficult position; in effect, they are being blackmailed by the landowner.

It will come as no surprise to some of those who know the case, and may be a disappointment to some hon. Members, that the landowner concerned was at the time a Conservative district councillor. However, to be fair to the Conservatives—I do not like being fair to the Conservatives, but on this occasion I will be—all the other Conservative district councillors involved were horrified at the actions of that gentleman. They very strongly supported the view of the whole council that what he was doing was thoroughly immoral and totally unexpected, and that if any action could be taken to stop what he was doing, it certainly should be taken—to the extent that the council unanimously, except for the one gentleman concerned, decided to take out a case against him and see whether, as a result of their management of the common, they could find a way of ensuring that these payments should no longer go ahead. Unfortunately, the district council lost the court case, in 1995. As a result, the payments are still being demanded.

As other hon. Members have said, this situation arises only because the land is common land. If we were looking for access over any other type of land, access would by now be permanent owing to the length of time for which it had been allowed. However, the value of the ransomed strips to the landowner is now enormous. I believe that that is unfair—indeed, immoral.

In some cases, as we have heard, there may be some legal difficulty with charging less than the maximum possible. In the case that I have described, there is certainly no legal difficulty; the landowner could, if he wished, choose to charge a much smaller sum for access, but he chooses to go for the maximum amount that is available to him.

I hope that the Government will use this opportunity to bring this situation to an end. They have a chance in the Bill to do so, and I hope that they use their opportunity.

Mr. Nick St. Aubyn (Guildford)

I have listened to the debate with great interest because some of my constituents have a slightly different problem, more similar to that described by my hon. Friend the Member for Stratford-on-Avon (Mr. Maples), in that the landlord of the common across which they seek access to their properties is Surrey county council. In correspondence, the Minister has referred to the good practice of Surrey county council, which has drawn up a table of charges for owners of houses, depending on how long they have lived in the house and on the assurances that they have received from the council in previous years.

The difficulty in that situation arises from the Local Government Act 1972. I wrote to the Minister on this point as recently as 23 May, and no doubt it is in his mind, as we speak this afternoon, that while endorsing in his letter to my right hon. Friend the Member for North-West Hampshire (Sir G. Young) the practice of Surrey county council, he did not deal with the problem that it faces—as do parish councils and other councils—that when it is operating a reasonable system of discounts, charging a maximum of, say, only 5 per cent., it does so in the knowledge that it might have been able, if it had been a more rapacious landlord, to extract 10 per cent. or more; and under the current regime put in place by the Minister's predecessor in the present Government, the right hon. Member for North-West Durham (Ms Armstrong), the limit of its discretion to be reasonable is £10,000. If a property is worth more than £200,000, and the council's discretionary cut from 10 to 5 per cent. is therefore more than £10,000, the discretion comes to an end. The table that Surrey county council sent my right hon. Friend the Member for North—West Hampshire contains the following footnote: Subject to a maximum discount of £10,000 on the Council's valuation of the right of access. That limit to the reasonableness, or sense of fairness, of Surrey county council—a Conservative council, which does not wish to impinge on the rights of the people whom it represents—is being placed on it by the Minister and his Department.

I support the amendment, but I accept that the Minister may have problems with the European Court of Human Rights and with the human rights legislation if a wider discretion is entrenched in law. Clause 123 is relevant in this context, and there is no constraint on the Minister's saying that, with regard to the Local Government Act 1972 and the county council, reasonable charges are the proper way to proceed; and that the discretion of the council should be unlimited, provided it is reasonable and does not charge extortionately and unreasonably. If he were to do that, he would deal with the problem raised by my hon. Friend the Member for Stratford-on-Avon about his parish council and with the problem of Surrey county council to which I alerted him again.

I would be grateful if the Minister made some progress on this issue. If he did, he would relieve some of the problems that many hon. Members have described.

Mr. Green

There are two equally important sets of amendments in this group. The first is amendment No. 304, which was moved by my hon. Friend the Member for Basingstoke (Mr. Hunter), and the consequential amendments to it. He will be aware that these issues were discussed in long and complex debates in Committee that covered the Grimsell lane case and in which Mr. Plumbe was quoted extensively. Many of us on both sides of the Committee said that the Government needed to take action to clarify the position with regard to byways. However—to reduce their case to a short phrase—they said that that was unnecessary and that the Bill as it stood, along with existing legislation on transport, was sufficient to deal with the issue. I did not find the Government's explanation in Committee particularly convincing, so I look forward to hearing whether the Minister will take this opportunity to come up with a more convincing explanation. If he does not, the other place will wish to return to this issue.

My right hon. Friend the Member for North-West Hampshire (Sir G. Young) spoke to amendments Nos. 135 and 136, and several important issues have been raised. The House will recognise the catalogue of manifest injustices that we have heard from hon. Members from across the country. I am surprised that I have not yet had similar cases in my constituency, but I like to think that that is because of the essential and universal reasonableness of landowners in Kent. I shall cling to that faith until it is proved misplaced.

One side issue of this urgent and important problem is compensation. Today's debate and the advice that the Minister gave my right hon. Friend have suggested that it would be improper, under the terms of the European convention on human rights, for landowners to receive no compensation if their right to charge people who cross their land were taken away. So why is the Minister so sure that it is against the convention to take away the rights without compensation in this case when he is equally sure that it is correct to do that for general access land? It appears on the surface that the Government are facing in diametrically opposite directions in the advice that they gave my right hon. Friend and in their advice that the Bill is consonant with the European convention on human rights. I hope that the Minister will deal with that point when he replies.

Several key issues need to be set in the wider context of the Bill, the Government's other environmental policies and, in particular, their consultation on the law relating to commons. Because the problem is so urgent—for the individuals involved, a delay of even a few months, let alone many years, will be a matter of difficulty—the essential message to the Minister is that it is entirely appropriate to use the Bill as a vehicle to resolve it.

There are several arguments to support that contention, the first of which is that the Bill already makes substantial changes to commons. It provides a right of access to rural commons and amends provisions on vehicles on commons. Its rights of way and nature conservation provisions will have a significant effect on commons management, which is clearly central to the areas that it covers. Many new issues on commons management and access have arisen which, presumably, is why the Government have issued a consultation paper.

Most importantly, however, those of us who have been involved with the Bill's progress know that wildlife protection and nature conservation Bills come along once every 20 years or so. Bills affecting commons are even less frequent. I think that I am right in saying that there were three Acts relating to commons throughout the twentieth century. So if the Minister says that the Government are holding a consultation and must delay, I suspect that there will be delay of many years and perhaps even decades before this urgent issue is resolved. The Government have given no indication that there is a legislative slot for a commons Bill. They find slots for new, unnecessary Bills, but it would be cloud cuckoo land to think that there will be a commons Bill before the next election—and who knows what the priorities of the next Government will be?

In short, the Minister is faced with an urgent problem and must find a legislative slot to solve that problem. I therefore join my right hon. and hon. Friends in urging him to take the opportunity to use the legislative powers available to him in the Bill to solve a deep, urgent problem for many people throughout the country.

The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Mr. Chris Mullin)

The amendments deal with two separate issues, and I shall start with the issue of driving motorised vehicles on bridleways.

Amendments Nos. 304, 305 and 302 would affect schedule 7, especially the amendment to section 34 of the Road Traffic Act 1988, which would make it an offence to drive on land which does not form part of a road. In Committee, I explained that new subsection (2) of section 34, which was added by Government amendment in Committee, is designed to improve the enforcement of section 34 and address in particular the problem of large numbers of motor bike riders who believe that they may ride with impunity on bridleways and footpaths, regardless of whether there is any evidence of vehicular rights over them.

Amendments Nos. 304 and 305 would make the definitive map conclusive evidence of the rights shown on it alone. However, they could have the effect of making it no longer possible to record higher rights which may subsequently be discovered over a footpath, bridleway or, as the definition is amended by the Bill, a restricted byway. So, for example, if bridleway rights were shown to exist over a way shown on a definitive map as a footpath, it might not be possible to upgrade the footpath to a bridleway, and the outcome would be inaccurate maps.

The effect of amendments Nos. 303 and 45 would be that a person prosecuted for driving on a way shown on a definitive map as a bridleway, for example, would have to produce evidence of full vehicular rights on the basis of the balance of probabilities. That is a higher test than that which may be required to put a new right of way on a definitive map. Amendment No. 302 would make the definitive map conclusive for the purposes of a prosecution. However, the level of evidence required to put a new right or way on a definitive map is much lower than that required for a criminal prosecution.

In view of the concern expressed by a number of hon. Members that the Government amendment made in Committee did not go far enough, I agreed to consider this matter further. We are still considering it. A key question is whether a person should be deprived of exercising rights over a highway merely because those rights have not been recorded on a definitive map. It is not a constraint, for example, which applies to walkers or horse riders.

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I accept that Parliament has provided the definitive map process as a means of recording public rights of way, and there are arguments that, in general, people should not try to bypass that process. In part, those arguments are reflected in the new subsection (2) in section 34 of the Road Traffic Act 1988, which removes the obligation on the prosecution to prove its case from the very beginning. Instead, the defendant has to produce prima facie evidence as to possible vehicular rights. If he cannot, the prosecution is not obliged to prove that vehicular rights do not exist. We need to think carefully about the implications of going beyond that. It is right that Governments should be cautious before deviating from the general principle of criminal law that the prosecution should prove its case beyond reasonable doubt.

I am afraid that I cannot say more than that today. I repeat that we are considering the matter, but I cannot give any commitment that we will introduce amendments at a later date, although I acknowledge the problem. As my hon. Friend the Member for Denton and Reddish (Mr. Bennett) and my right hon. Friend the Member for South Shields (Dr. Clark) have said, we have recently been in discussions with the Lake district national park authority about the difficulties. I am sorry that I cannot go further today.

Amendments Nos. 135 and 136 relate to the problems of common land, which were clearly outlined by the right hon. Member for North-West Hampshire (Sir G. Young). I do not resile from the statement that I made in an Adjournment debate a while ago. The situation that he described, and the situation elsewhere, as described by other hon. Members, is outrageous. I am afraid to say that they are not the only examples of such spivvery that I have come across. Many of my constituents have started receiving large bills from companies, usually based in the south of England, that have bought the freehold at an auction somewhere. The bills are not for the freehold money, which would be a small sum, but for retrospective consent for putting in a sliding door, making some minor extension to the house or putting up a conservatory. My constituents face exactly the same kind of blackmail. That is another problem that needs to be resolved. I mention it to show that the problem is not confined to the constituencies that Conservative Members represent. Such behaviour is, unhappily, all too common in this day and age.

The right hon. Member for North-West Hampshire described very fairly the efforts that I made to assist with the problem at Newtown, but he missed out one stage. I went one stage further than he said, and arranged a meeting with Mr. Farrow of Bakewell Management and pressed on him the need to reach a reasonable settlement with the right hon. Gentleman's constituent. We should not get involved in the details of the negotiation here, but from that meeting, rightly or wrongly, I formed the view that some form of compromise acceptable to most of those involved might be achievable.

At the time of the debate, the right hon. Gentleman described me as a hero. I never allowed that to go to my head, because I am aware that the line between being a hero and being a traitor to the people is wafer-thin, and one can stray across it at any moment. It may well be that in the light of my response I shall have strayed across it by the end of this debate. The difficulty with introducing legislation that meets all the different circumstances affecting commons is that there are many different sets of circumstances. Other hon. Members have described how in some cases the National Trust was the landlord; in other cases Surrey county council was the landlord. As the hon. Member for Guildford (Mr. St. Aubyn) said, Surrey county council has behaved very responsibly, as does the National Trust. It is therefore quite difficult—desirable though it is—to come up with a solution that meets all possibilities.

I turn in detail to amendments Nos. 135 and 136. The unfortunate situation has arisen because driving on common land can be a criminal offence. That has been so on some commons since as long ago as 1926. Rights of vehicular access through long use can be acquired only where no criminal offence is committed. For some reason that I cannot explain—there are a number of such aspects—that often seems to have been overlooked when a house with access over a common was built or sold and the deeds made no mention of access rights. I think that I am right in saying that in no single case in Newtown did lawyers discover such rights when houses were sold.

As a result, a number of people whose sole means of vehicular access is over common land owned by someone else have no legal right to use the access. Recent court cases have highlighted that problem, and drawn attention to the value of vehicular access in today's context and the high charges that can be made for acquiring such access.

When the issue was raised in the House last year, I undertook to investigate the situation and to see whether Government action would be appropriate. With officials in my Department, I have gone over a number of options for overcoming the problem. Our objective was—and, indeed, remains—to try to find a way to ensure that the charges made by landowners for easements are reasonable. However, we have so far concluded that none of the options is straightforward, and that they are all likely to have serious implications elsewhere.

The principal effect of amendments Nos. 135 and 136 would be to make it lawful to drive over common land to access a dwellinghouse—and not only that: amendment No.135 states that it has always been lawful to do so, and amendment No. 136 would make the activity lawful, in certain circumstances, over at least the past 20 years. As it is currently a criminal offence to drive on common land without the owner's permission, I am not clear what the amendments' effect might be on someone who was convicted in the past. What would happen to their conviction? Similarly, could action be taken against a landowner who had, quite lawfully at the time, denied access? [Interruption.] I am sharing with the House the advice that I have been offered.

There is one quite serious general point. The right hon. Member for North-West Hampshire spent longer in government than I spent in opposition, and he will know that Governments do not lightly engage in retrospective legislation. I do not say that that is the end of the matter, but his amendments do not overcome that problem, whatever he thinks about the points that I raised a moment ago.

Mr. Hogg

I shall make two points to the Minister. First, the legal advice that he is receiving about previous actions or convictions can be met simply by stating in the Bill that any amendment such as amendment No. 135 does not affect the validity of actions taken under the old law. That can be stated in statute. Secondly, when he is reviewing the matter, I hope that he will not confine himself to dwellinghouses. I make the same point to him as I made to my right hon. Friend the Member for North-West Hampshire (Sir G. Young) with regard to the rights of access to other land: agricultural holdings, commercial property, horticultural holdings and so forth are just the same for such purposes.

Mr. Mullin

That final point makes me a little nervous. The more that one broadens the matter, the more complications can be discovered. I am not sure whether the right hon. and learned Gentleman's second point—I note his first—is entirely helpful to the right hon. Member for North-West Hampshire and the hon. Member for Stratford-on-Avon (Mr. Maples). To judge by the expressions on their faces, they may share my view on that point.

Mr. Richard Page (South-West Hertfordshire)

If a council or a landowner enforces the rights, the person in question is aware of them. The problem for so many of us on the Opposition Benches is that our constituents bought homes in good faith when unaware—as was the council—of such rights, but are to be caught by retrospective action that is untenable. The Government should do something about it.

Mr. Mullin

I share the hon. Gentleman's view of the unfairness of it all. It is possible that when the houses were last conveyed, lawyers acting for the individuals concerned should have spotted such rights. I do not make that point too strongly because none of the lawyers in any case spotted it—so the rights may have been buried quite deeply.

Mr. Page

I am grateful to the Minister for giving way again. Most lawyers make local authority searches, and the local authority should record the existence of a right of way and draw it to the solicitor's attention. The fault is not the solicitor's, but the local authority's.

Mr. Mullin

If the hon. Gentleman will forgive me, I do not want to get too deeply involved in where the fault lies. We all acknowledge that there is a serious problem, and one way or another, a solution must be found—not necessarily a legislative solution; in some cases, particularly in Newtown, a negotiated solution may be possible.

The hon. Members for Stratford-on-Avon and for North Norfolk (Mr. Prior) mentioned the Local Government Act 1972. I cannot give them an answer off the top of my head, but I will take advice. I am told that it is open to councils to apply to the Secretary of State for variation of the disposal consent. That route may be helpful, though not necessarily in all cases.

Mr. St. Aubyn

The Minister may not be aware that his predecessor was approached by Surrey county council, which asked her to give a broader remit so that the council could deal with the problem in a fair and reasonable way. At that time, the Department's policy was not to give any further discretion to the council. However, as the Minister said in his letter to my right hon. Friend the Member for North-West Hampshire on 10 May, that a reasonable capital charge would be no more than 5 per cent., and as the relevant section of the Local Government Act 1972 states: Except with the consent of the Secretary of State, a council shall not dispose of land … for a consideration less than the best that can reasonably be obtained it seems that his wording is close to giving the remit that reasonable landlords want in order to proceed in a way that is fair to my constituents and those of my right hon. Friend.

Mr. Mullin

I do not recall the detail of the 1972 Act, but I undertake to consider whether that provides a possible route. There are various suggestions on the table, and we need to consider them. However, neither of the amendments meet the situation. They seek to rectify the situation retrospectively, which is extremely difficult for any Government.

Mr. Maples

Will the Minister give way?

Mr. Mullin

Yes, but this must be the final time.

Mr. Maples

I am grateful to the hon. Gentleman. He has rejected the two amendments, but as he knows, there are other possible solutions that would set out a value in the legislation—,£1,000 or £2,000—or set out a formula or give the valuation to some third party. Will he consider one of those options as an acceptable solution?

Mr. Mullin

We have heard a list of such suggestions, and I undertake to consider them. I acknowledge the seriousness of the problem. If I could think of a solution to it now, I would offer it. I know that the right hon. Member for North-West Hampshire tabled other amendments—which, regrettably, were found to be outside the scope of the Bill. Perhaps a solution could be found along those lines. All I can tell the House is that the two amendments will not achieve the intended purpose.

Mr. Bennett

My hon. Friend does not seem to have convinced anyone in the House, even himself. Will he give us an undertaking that the matter will be sorted out in the other place?

Mr. Mullin

I have no difficulty in convincing myself; I cannot speak for anyone else. It should not be difficult to convince my hon. Friend that because the amendments are retrospective, they do not do the job that is required. I have no difficulty with that idea, and if hon. Members think about it, most of them will recognise it. I acknowledge that there is a difficulty. If there is a legislative solution, as opposed to a negotiated one—I still think that in the particular case, there is scope for negotiation—we must try to discover it.

5.45 pm

Sir George Young

I remind the Under-Secretary of his words about the current position: "outrageous", "spivvery", "blackmail", "unfairness". He used those words a few moments ago. He wants to find a solution; we have proposed a vehicle. Does he genuinely claim that it is beyond the Government's resources between now and the Bill's consideration in another place to find a solution to the problem that so many hon. Members have brought to his attention this afternoon?

Mr. Mullin

I did not claim that it was impossible to find a solution before the Bill goes to another place, but I make no commitment to doing that. In the nine months during which we have considered the Bill, no one has proposed a solution that deals with all the problems, give or take one or two suggestions this afternoon. I do not recognise the word "blackmail"; I believe that the right hon. Gentleman used it. However, I own up to the other three words.

I am afraid that I must ask hon. Members not to press the amendments.

Mr. Hogg

I shall make three observations. First, I would not want to depend on a negotiated settlement. When there are unequal strengths, such a settlement is not necessarily just. I would not wish my constituents to depend on such a settlement.

Secondly, the hon. Member for Denton and Reddish (Mr. Bennett) is right. The argument that the Under-Secretary advanced about the legal difficulties does not stand up. It is true that there is a disadvantage associated with the amendment because people will say, "What about decisions that were made in the past—for example, on criminal convictions or actions by a landlord?" The amendment could deal with that difficulty by stating that the provision would not have a prejudicial effect on decisions made under previously existing law. Parliamentary counsel can deal with the legal language.

My third point—I am sorry to distress my right hon. and hon. Friends—is about the attempts to distinguish between a dwellinghouse and other landholdings That important problem troubles my right hon. Friend the Member for North-West Hampshire (Sir G. Young) My hon. Friends made compelling speeches, but there is no distinction in principle between a dwellinghouse and any other form of landholding. I hope that the problem will be tackled. If so, I hope that the Under-Secretary will also consider access to and egress from other holdings of land—agricultural, horticultural and commercial—as well as the dwellinghouses that my hon. Friends have discussed.

Mr. St. Aubyn

My right hon. and learned Friend is missing a point. The other landholdings to which he refers have experienced development, whereas most of the dwellinghouses have existed and remained the same sometimes for more than 100 years. The scale of the problem is different. Development on other landholdings may create other problems and obligations for surrounding residents; they may well be grateful for obstacles in the way of further development.

Mr. Hogg

I do not recognise that distinction. If I were the proprietor of a small butcher's shop that had existed for a long time, and suddenly found that the owner of the common land was seeking to charge for access to my shop, I would be as angry as if I were the owner of a small dwellinghouse. If I were the proprietor of a small horticultural holding of the sort that exists in my constituency, or a small landholding of a few acres, I would not accept a distinction between me as the small landowner and the large householder in another constituency. There is no difference. I hope that the Under-Secretary will consider all the problems. The problems exist, but let us not make false distinctions.

Mr. Hunter

I speak only to amendments Nos. 304, 305, 302 and 303; other hon. Members can speak to the others in the group. I listened carefully to the Under-Secretary. He did not go as far as I would wish. He said that the Government were considering the matter further, but he made no promises, and gave no commitment to action. That does not amount to much. However, I am in a charitable mood, and, as I acknowledge that the hon. Member for North-East Derbyshire would not have pressed his amendment, I am prepared to follow suit.

Sir George Young

The Under-Secretary's natural decency clashed with the harshness of the brief; he was visibly uncomfortable with what he had to read out. I am afraid that his response was unsatisfactory. He should assume ownership of the problem and undertake to provide a solution; it is not enough to invite Back Benchers to go away and try again, leaving the Government free simply to shoot down amendments at a later stage because they are incorrect.

Mr. Green

The Under-Secretary said that other amendments were out of order, including those containing solutions suggested by my hon. Friend the Member for Basingstoke (Mr. Hunter). That is not correct. Those amendments appear on the amendment paper, so they are in order; they were simply not selected for debate. Therefore, they could constitute a legislative route that the Government could take in another place.

Sir George Young

I am grateful to my hon. Friend, but my point is that, unless the Under-Secretary gives an undertaking that he will assume ownership of the problem and that he will table amendments in another place, I am afraid that I find his reply disappointing and unsatisfactory and, at the appropriate time, I shall seek leave to divide the House.

Mr. Hunter

I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.

Mr. Mullin

I beg to move amendment No. 227, in page 50, line 14, at end insert— 'The Highways Act 1980 (c. 66). . In section 116 of the 1980 Act (power of magistrates' court to authorise stopping up or diversion of highway) in subsection (4), for "or bridleway" there is substituted ", bridleway or restricted byway". . In section 329(1) of the 1980 Act (interpretation) after the definition of "reconstruction" there is inserted— restricted byway" has the same meaning as in Part II of the Countryside and Rights of Way Act 2000;"'.

Mr. Deputy Speaker (Mr. Michael Lord)

With this it will be convenient to discuss the following: Government amendments Nos. 190 to 193, 264, 273, 225 and 226.

New clause 15—Amendment of sections 116 and 118 of the Highways Act 1980— '.—(1) In subsection (1) of section 116 of the 1980 Act, for the words "or a special road" there shall be substituted ", a special road, a footpath or a bridleway". (2) In section 118 of the 1980 Act there shall be inserted after subsection (3)— (3A) A public path extinguishment order may provide for the stopping up of a bridleway subject to the reservation of a footpath.".'.

Mr. Mullin

Government amendment No. 227 arises from amendments tabled in Committee by the hon. Members for South-East Cambridgeshire (Mr. Paice), for Ashford (Mr. Green) and for Cotswold (Mr. Clifton-Brown) It will enable a magistrates court, when closing or diverting a carriageway under section 116 of the Highways Act 1980, to reserve restricted byway rights over the line of the old highway. That will complement existing powers under that section to reserve footpath or bridleway rights over an extinguished or diverted highway.

Government amendment No. 226 is a consequential amendment, which will delete the definition of "restricted byway" in clause 54. That definition is superfluous because it already appears in clause 44, where it is applied to all of part II.

Government amendments Nos. 225, 264 and 273 are minor consequential and technical amendments. Government amendments 190, 191, 192 and 193 are essentially technical amendments to the regulation-making power in clause 48, which relates to restricted byways.

Government amendment No. 190 will clarify the intention in clause 48, which is that regulations made under it should enable changes to be made not only to legislation directly applying to highways, but to the vast body of legislation that regulates what is done on highways or in connection with them. It will make it clear that clause 48 may be used to amend provisions on the creation, diversion or stopping up of highways.

Government amendments Nos. 191 and 192 are drafting amendments. Government amendment No. 193 sets out that clause 48 may be used to amend legislation that is inserted into other Acts under the Bill. For example, schedule 6 contains many consequential amendments to highways legislation as a result of the substantive provisions that it contains. Other substantive amendments may need to be made, which would require further amendments to those consequential amendments.

Mr. Paice

Although we are disappointed in the Government's response to several of the major issues that we have raised in Committee and on Report, it would be churlish not to acknowledge our gratitude that Government amendment No. 227 is their response to the persuasive arguments that my hon. Friends and I marshalled in Committee. We are always pleased and happy temporarily to pick up the crumbs from the Under-Secretary's table, and I thank him for listening on that occasion.

Mr. Bennett

I had hoped that my hon. Friend the Under-Secretary would continue all the good news by telling us that he was prepared to accept new clause 15, which deals with a long-running issue. I argued a similar case during consideration of the Wildlife and Countryside Act 1981. Just before that Act was introduced, changes were made under the Highways Act 1980. As a result of that and the 1981 Act, rights of way can be closed in two ways—through a procedure in the magistrates courts and through the planning process. Whatever party has been in power, the Government have never claimed that they encouraged local authorities to use the magistrates procedure. It is clear that the intention was to use the planning process to decide whether a right of way could be closed or diverted.

Government guidance on the magistrates court procedure states: the Secretaries of State consider that authorities should make use of the other powers available unless there are good reasons for not doing so. Over the years, most local authorities have accepted that advice and have normally used the planning process, which contains a series of safeguards. There is a need to put notices on footpaths and to notify various bodies that a proposal for a closure or diversion will take place. The process is well understood, and volunteers for groups, such as the Ramblers Association, the Open Spaces Society and the Peak and Northern Footpaths Society, have coped with it very efficiently. They can send someone to an inquiry and make representations.

What appears to happen is that, every so often, local authorities decide that they would prefer to go the magistrates courts. In the past, they had to come up with a good reason. The good reason increasingly seems to be that that procedure is cheaper and quicker. I hope that my hon. Friend the Under-Secretary will tell us that that anomaly will be cut out altogether and that the planning process will be used rather than the magistrates courts. If he insists that we need to keep both processes, will he make it clear which of the good reasons to use the magistrates courts procedure listed in Department of the Environment circular 2/93 will be acceptable?

Mr. Mullin

New clause 15 is similar to one tabled in Committee by my hon. Friend the Member for Brighton, Pavilion (Mr. Lepper). I acknowledged at the time that in our consultation paper, which was issued last year, we proposed removing from magistrates courts the power to close rights of way. I said that we decided not to proceed with the proposal because of the mixed response that we received. Many local authorities apparently prefer the existing arrangements because they are flexible. The current provisions contain safeguards. For example, users of the highway involved have a right to be heard by the magistrates court and parish councils have a power of veto.

On the second part of new clause 15, an order is made under section 118 of the Highways Act 1980 if a right of way is not needed for public use. For example, another right of way might serve the same purpose. However, if one bridleway performs the same function as another, it will be open to people on foot as well. So if there is a case for closing the first bridleway, it is not immediately clear why the right of way on foot should be saved. I therefore ask my hon. Friend not to press new clause 15 to a Division.

Amendment agreed to.