ENFORCEMENT OF DUTY TO PREVENT OBSTRUCTION (Hansard, 28 November 2000)

§ Mr. Meacher
I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker
With this it will be convenient to discuss Lords amendments Nos. 81 to 98, 101, and 234 to 236.

§ Mr. Meacher
Because of the time, I shall speak only briefly, and to the more important amendments.
Lords amendments Nos. 80 to 95 relate to clause 59, which enables a person to trigger action by a local highway authority to remove obstructions from rights of way, if necessary by seeking an order from the magistrates court. Buildings or structures are excluded from clause 59. Lords amendments Nos. 80 and 92 make clear which buildings or structures are excluded and remove the rather extraordinary possibility that someone might block a right of way with an empty vehicle, not designed as a dwelling, and argue that it could conceivably be lived in and was therefore exempt from the provisions. I am sure that the whole House is delighted to learn that that is now preventable.
Lords amendments Nos. 82 to 91 and 93 to 95 give a person who is responsible for the obstruction, including its owner, a right to give evidence to the court on those matters on which it must be satisfied before it can make an order. The aim is to ensure that the court is provided with as much relevant information as possible when deciding whether to make an order. The Lords amendments also give the person responsible for the obstruction a right to appeal to the Crown court against a decision of the magistrates court. Of course, the complainant and the highway authority already have such a right.
I shall briefly deal with Lords amendment No. 234, as it relates to the Grimsell lane case, which was of interest in Committee. Lords amendment No. 234 relates to section 34 of the Road Traffic Act 1988, which is amended by schedule 7 to the Bill. Among other things, schedule 7 extends to restricted byways the current 890 offence of driving a motor vehicle without lawful authority on a footpath or bridleway. For the purposes of prosecutions under section 34, a new subsection (2) creates a presumption that a way shown on a definitive map as a footpath, bridleway, or restricted byway is to be treated as such a way unless a defendant produces evidence to the contrary.
Lords amendment No. 234 also raises the evidential burden from a prima facie one to one of the balance of probabilities, which is the same level as that required to secure a modification to the definitive map. That is the highest evidential burden placed on a defendant in criminal proceedings.
The effect of Lords amendment No. 236 is to make it an offence, in certain circumstances, to drive on a way shown as a footpath, bridleway or restricted byway, regardless of whether it carries full public vehicular rights of way. It inserts a new section 34A into the Road Traffic Act 1988 requiring a defendant, in addition to proving the existence of full vehicular rights of way, to show that it was reasonably necessary to drive the vehicle to gain access to land in which he has an interest or on which he is a visitor but not a trespasser, or that it was reasonably necessary for him to drive the vehicle for the purposes of any business, trade or profession.
The amendments deal with a vexed issue that has concerned both the courts and the Committee, and I hope that the issue is now satisfactorily addressed.

§ Mr. Green
I am grateful to the Minister for his explanation of the amendments and for mentioning our lengthy debates on the Grimsell lane case. This is an opportune moment to pay tribute to one of the groups that has provided so much information for our debates, GLEAM—the green lanes environmental action movement—which is quite rightly concerned with the preservation of green lanes. I declare an interest as a GLEAM member.
The measures that the Minister has described sound adequate. However, the right hon. Gentleman will be aware that GLEAM itself has said that, although progress was made in the Bill's early stages, it was not at all convinced that sufficient progress had been made in protecting green lanes from inappropriate vehicular use. We shall have to see how the legislation pans out in practice. Although I am aware that the Minister has, as he just said, strengthened many of the provisions, I suspect that, at this stage, we can only hope that enough has been done and that we will not have to revisit the issue in future legislation.
The Minister also said that the legislation does not permit someone to park an empty vehicle across a right of way and thereby claim that there is a building obstructing the way. One wonders what would happen if someone parked a caravan in such a location and lived in it very occasionally. Would that constitute a building under the legislation? Could the legislation be obstructed by that particular ruse?

§ Mr. Meacher
The hon. Gentleman has asked a very interesting question, to which I am not sure of the answer. I should have thought that, because a caravan is mobile, that would not constitute entitlement to exemption from the provisions. However, although that is my opinion of
891 what would make common sense, the law is never quite the same as common sense. If I am incorrect in that opinion, I shall let the hon. Gentleman know by letter.