HC Deb 28 November 2000 vol 357 cc837-55

Lords amendment: No. 1, in page 2, line 13, after ("includes") insert

(", subject to the following definition,")

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

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

Madam Deputy Speaker

With this it will be convenient to discuss Lords amendment No. 2 and amendment (a) thereto, and Lords amendments Nos. 3, 34, 38, 153 to 157 and 171.

Mr. Mullin

This group of amendments refines the concept of access land and exclusions from it. Before I go into them, let me say that almost all the amendments were tabled that we will be discussing today in response to proposals by one or other of the Opposition parties—whose attention I hope to attract in due course.

We have bent over backwards to meet the concerns of right hon. and hon. Members and their noble Friends to address the genuine concerns of landowners. I hope that right hon. and hon. Members will celebrate the fact that they have helped to make what was already a good Bill even better. That was acknowledged by Opposition Members in the other place. Lord Glentoran, for example, said that the Bill is developing into a first-class piece of legislation.—[Official Report, House of Lords, 16 November 2000; Vol. 619, c. 480.] Baroness Byford, also on the Opposition Front Bench in the other place, said on Third Reading:

The Bill will now give access to millions of people—safe access, because that is what we have been after. It preserves our fauna, flora and wildlife. It improves rights of way. It has added … the areas of outstanding natural beauty. We welcome all that. She concluded:

It has been my great privilege to have taken part in the shaping of a Bill that will give great pleasure to millions of people in the future.—[Official Report, House of Lords, 23 November 2000; Vol. 619, c. 1065-66.] All the amendments made in the other place have improved the Bill—almost all in ways that Opposition Members have wanted. I hope that they will welcome them with open arms. I thought that I detected a trace of nit-picking yesterday in one or two Opposition arguments, but I am sure that we are past that stage now.

Lords amendments Nos. 1 and 2 will specifically provide that mountain, moor, heath or down" does not include land which appears to the appropriate countryside body to consist of improved or semi-improved grassland. The amendments will achieve two aims: they will put it beyond doubt that agricultural land other than unimproved and semi-improved grassland will not be treated as mountain, moor, heath and down; and they will enable such land to be excluded from maps of open country at the draft and provisional stages, so that both landowners and walkers can benefit from reasonable clarity as to what is open country.

Mr. David Kidney (Stafford)

When my right hon. Friend the Minister for the Environment set out on this legislative procedure, he estimated that the Bill would open up access to about 4 million acres of mountain, moor, heath, down and registered common land. Does the amendment make a significant difference to that estimate?

Mr. Mullin

I do not expect that the amendment will make a significant difference to the estimate. However, it will, as I said, provide some clarity, which is what walkers and landowners wanted.

Part I provides for a right of access to all common land registered as such under the Commons Registration Act 1965. Lords amendments Nos. 3 and 38 will ensure that access to common land would be preserved if it was de-registered after the Bill had been enacted. They will ensure that any land removed from the registers by virtue of an application made after the date of Royal Assent will continue to be treated as registered common land for the purposes of the statutory right of access. That will not affect access to common land that is removed from the registers as a consequence of powers of exchange or compulsory purchase.

Lords amendment No. 34 will enable regulations to be made to avoid possible undesirable consequences arising from access land being treated as a public place under other legislation. We do not envisage many circumstances needing to be addressed in this way, but the power is likely to be useful in certain cases.

We have also recognised the concerns expressed about the impact of the right of access on occupiers' obligations under section 162 of the Mines and Quarries Act 1954. The Act provides that certain mine shafts and quarries that are accessible to, and pose a danger to, the public are to be regarded as statutory nuisances for the purposes of the Environmental Protection Act 1990 unless they are fenced.

Issues of occupiers' liability will be addressed later, in the fourth group of amendments that we shall consider. However, Lords amendment No. 34 will enable regulations to be made that would provide that access under the new statutory right may be disregarded in determining whether a disused mine shaft or quarry is a statutory nuisance. Such regulations would, in effect, relieve the owner of any burden to fence it under the 1990 Act, when that might arise under the new statutory right.

Mr. John Bercow (Buckingham)

I do not seek at this stage to cast aspersions on either the purpose or the likely effect of the regulations to which the Minister has just

referred, but it would be helpful if he explained whether they will be subject to the negative or the affirmative procedure.

Mr. Mullin

I believe that they will be subject to the affirmative procedure.

Mr. Kevin Hughes (Doncaster, North)

It is the negative procedure.

Mr. Mullin

I am being advised that I am wrong, and that the regulations will be subject to the negative procedure. There has been a lot of debate on these matters.

Lords amendments Nos. 153, 154 and 156 except from the right of access any land within 20 m of a dwelling or a building used for housing livestock—that is just over 65 ft, to any Euro-sceptics. I do not think there are many present. Oh, yes, I see that there are. The amendments reflect the Government's response to genuine concerns about the impact of access on the privacy and security of people living on or adjacent to access land, and on the security of farm buildings. However, the exclusion of access from around farm buildings will not apply where the position of such buildings would effectively frustrate access.

Lords amendments Nos. 155 and 157 recognise the special needs of the racehorse training industry. We accept that there are real concerns about how best to reconcile the new right of access with the training of racehorses on land that qualifies as access land. We have listened to the racing industry and tabled the amendments to target action where it is needed. I believe that there is common ground between the Government and the racing industry that the exclusion of access from training gallops should not be more than is required to ensure the safety of employees, their horses and the public. The amendments therefore provide for land used for training racehorses to be excepted from access between sunrise and midday and at other times when the land is in use for that purpose.

Schedule 13 to the Wildlife and Countryside Act 1981 imposes an obligation on the Countryside Agency to make an annual report to the Secretary of State on the exercise of its functions arising under the National Parks and Access to Countryside Act 1949, the Countryside Act 1968 and the 1981 Act. Lords amendment No. 171 extends those obligations to require a report on the exercise of those functions under the Bill.

Mr. James Paice (South-East Cambridgeshire)

I thank the Minister for the way in which he introduced the amendments and I place on record my appreciation of the courteous note that I received from the Minister for the Environment to explain his absence at the beginning of our proceedings.

I do not wish to repeat last night's debate, but the Opposition are concerned that the fractionally under five hours allowed for this large number of amendments is inadequate if we are to give them the attention that they deserve. The Minister rightly said that many of the amendments had been tabled in response to views expressed in Committee, but, as I shall show in a moment, the Government vigorously and robustly rejected many of those views, but did a U-turn when the Bill got to the other place.

We welcome the amendments. As hon. Members will have seen, we have tabled a few amendments to the Lords amendments and we will deal with them as we proceed. The purpose of our amendments is to clarify or refine the amendments made by their Lordships, which in general we welcome.

As the Minister rightly said, Lords amendments Nos. 1 and 2 exclude improved or semi-improved grassland from the definition of mountain, moor, heath and down. I think that the Minister used the phrase, "It will put beyond doubt" the fact that improved and semi-improved grassland is not included. In Committee, the Minister for the Environment said clearly: the cultivated land exception is not intended to be the mechanism for excluding improved or semi-improved pastures and fields from a right of access. Such land will not qualify as open country and should not appear on the statutory maps … If cultivated land were given a broader definition, to include any improved grassland, for instance, that would result in a considerable uncertainty and confusion as to whether such an area was excepted land or open country.—[Official Report, Standing Committee B, 6 April 2000; c. 167-68.] There seems to be a gulf between the remarks made by the Minister for the Environment in Committee and the warmth with which the Under-Secretary introduced the amendments today. Their purpose, he said, was to clarify and put beyond doubt.

The Opposition welcome the decision clearly to exclude improved and semi-improved grassland. The issue was debated at length in Committee with reference not only to England but to Wales, although the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) is not with us this evening.

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Our amendment (a) to Lords amendment No. 2 is intended to press the Minister. The amendment would replace the words appears to the appropriate countryside body to consist with the word "consists". The purpose of the amendment is to allow us to investigate with the Minister what is meant by "appears to" consist of improved or semi-improved grassland, particularly in the case of legal challenge. Not being a lawyer, I can approach the matter only as a layman. If the law states that it is sufficient for land to "appear to" or, conversely, not to "appear to" the relevant countryside body to be improved or semi-improved grassland, it is difficult to see how that could be challenged, whereas if that body ruled that the land consisted or did not consist of such grassland, that could be challenged.

Mr. David Maclean (Penrith and The Border)

I thank my hon. Friend for giving way. I am sorry to interrupt him, but I hope that he will draw attention to the fact that the definition in the amendment flies in the face of the other definitions in part I. "Mountain" is described as including

any land situated more than 600 metres above sea level.

Nowhere in the Bill is it described as land which appears to the Countryside Agency to be above 600 m. The Minister must explain why the "appearing to the Countryside Agency" definition applies to open grassland, when no other definition in clause 1 is similarly phrased.

Mr. Paice

I am grateful to my right hon. Friend for raising that point, which demonstrates the validity of my argument. In fairness, there are parts of the Bill in which the phrase "appears to" occurs. In the debate in the other place, the noble Lord Whitty supported the choice of phrase by saying: We are talking about "improved or semi-improved" grassland, but there will be some semi-natural grassland which is essentially unimproved. It is grassland which, theoretically, might be able to produce a crop of hay but would not be included in this definition.—[Official Report. House of Lords, 23 November 2000; Vol. 619, c. 955.] That is the justification that Lord Whitty gave—

Mr. Andrew F. Bennett (Denton and Reddish)

Will the hon. Gentleman give way?

Mr. Paice

Let me finish the point, please. That was the justification given by Lord Whitty for the wording

appears to the appropriate countryside body.

As I said in my opening remarks, I shall not make a great deal of the matter. I am simply concerned about whether the definition will be contestable if the wording "appears to" is used.

Mr. Bennett

Does the hon. Gentleman accept that most people can tell whether grassland has been improved or not? That is what the Bill suggests. The danger with the old definition is that someone will say, "In the old records, the War Ag at some point insisted that a piece of inby land or ffrith were ploughed up." Sixty-odd years afterwards, it can be argued whether that still counts as improved pasture. The common-sense approach is that one can tell by looking where it has been improved or not.

Mr. Paice

I hear what the hon. Gentleman says and I do not dissent from the general view. We hope that many people will use the rights given by the Bill—many who are not entirely familiar with the differences. Those of us who have lived and worked in the countryside will be able to appreciate the distinction that the hon. Gentleman has made. My concern is whether the decision that the Countryside Agency will make in the mapping process will be contestable. If the matter rests on how matters appear to the agency, I question whether there can be a contest. I hope that the Minister will respond.

I accept entirely what the Minister said about Lords amendment No. 3. Lords amendment No. 34 relates to the reference to "public places" in existing enactments. The Minister referred to redundant or former mine workings. I must draw his attention to the concern expressed to me by the Country Landowners Association this morning. It comes under the heading of occupiers' liability, but it is appropriate to raise the matter now, given that the Minister refers specifically to the Mines and Quarries Act 1954. The CLA states: It is important to be clear that while Government amendment No. 19— it is in the second group—

to clause 42 would provide for regulations to exclude liability for mines and quarries under the Mines and Quarries Act, it will not remove liability in respect of these features under the Occupiers Liability Act. If this latter liability is not removed, owners will still have to undertake risk assessments and to fence off mines and quarries on access land. The CLA refers to the costs of compensation, for example, that would stem from that.

The Minister referred specifically to Lords amendment No. 34 as it relates to the Mines and Quarries Act. Perhaps he will explain more fully how he sees the relationship that I have outlined being established, and whether liability under the Occupiers Liability Act 1957 will remain.

Lords amendments Nos. 153 to 157 relate to schedule 1, which we debated at great length in Committee. Again, Ministers were not prepared to take time to consider our amendments and rejected the arguments advanced by myself, my hon. Friends and hon. Members representing other Opposition parties.

The first issue relates to curtilage. We tried to define its meaning in Committee, and the Government resisted intensely our every attempt to do so. The Minister for the Environment said: I, too, have the advice of learned lawyers. They say that a recent judicial decision on curtilage was given in the Court of Appeal in February in the case of Skerritts of Nottingham Ltd. v. the Secretary of State for the Environment, Transport and the Regions. The right hon. Gentleman concluded: Curtilage therefore has a meaning that can be flexibly applied to the facts of each case. There is no reason to suppose that a statutory definition of curtilage will be any more helpful than the court's interpretation. However, the Government have introduced a statutory definition, by including 20 m, or, as the Minister kindly told the House, 66 ft in imperial language. What has happened between 4 April—

Mr. Kevin Hughes

We listened to your argument.

Mr. Paice

That I would happily accept if I genuinely believed it, but I do not. I am sorry to disappoint the hon. Gentleman. [Interruption.] As the Government Whip is kindly saying from a sedentary position, I am a cynic in these matters. In Committee, Environment Ministers did not say, "That is a point worth thinking about", as they did in other cases. They did not say that they would think about it. Some of the amendments that we shall deal with later are definitely the result of further consideration by the Government. Instead, the Minister quoted legal justification for resisting our amendment. I am interested to know what has changed since then.

Other amendments to which the Minister referred relate to horse racing and training grounds. The House is familiar with my constituency interests. I represent a large proportion of the Newmarket training grounds as well as the racecourse. Again, my hon. Friends and I repeatedly advanced in Committee the risks associated with allowing the right of free access to training gallops. Ministers resented that and resisted as hard as they could. Unfortunately, the Minister for the Environment is not here to rebut his assertions, but perhaps that is why he has conveniently found something else to do at the beginning of our proceedings. However, in Committee he said: Opposition Members seem to be unwilling to accept that access might be compatible with the training of horses. They should visit Epsom Downs, where the training gallops are situated on land to which a statutory right of access applies. Despite the numerous examples that my hon. Friends and I adduced, the Minister went on to say:

Newmarket, however, has a vastly greater number. That refers to the number of trainers in comparison with Epsom. The Minister continued: That is why the same rules should not apply, irrespective of the size of the enterprise.—[Official Report, Standing Committee B. 4 April 2000;c. 143-521 Now, however, an amendment has been tabled that does precisely that and makes rules, irrespective of the size of the enterprise.

The Government are right and I do not understand why they did not accept our argument at the beginning. Why did they perform a volte face? Later groups of amendments will provide several examples of how the Government changed their mind, not because they went away and considered the issue but, perhaps, because it was expedient. I hope that the Under-Secretary and the Minister for the Environment will apologise to Committee members for all the time that was wasted while they resisted amendments only to roll over and accept them in the other place.

We support these sensible amendments and, with the exception of amendment (a) to Lords amendment No. 2, to which I hope the Under-Secretary will respond, we shall not oppose them. At the risk of repetition, it beggars belief that so much time was wasted in Committee on amendments that were considered again in the other place before the Government were persuaded to accept them in the face of the power of their lordships' arguments. However, I welcome the amendments—with the exception that I mentioned—and look forward to the Minister's response.

Mr. David Heath (Somerton and Frome)

Coming to debate Lords amendments to a Bill of this nature and size, which took so long to consider in Committee, is almost like revisiting an old friend. In this case, the old friend appears to have changed since we last saw him or her, having undergone major cosmetic surgery that has been all to the good. In the Bill's long Committee stage and later stages in the House, we gave admonitions that it should to go away, smarten up and put on new clothes. It is as if all those admonitions had been taken to heart and, I am pleased to say, the Bill is much better as a result.

There may be several reasons for that, as the hon. Member for South-East Cambridgeshire (Mr. Paice) said. We made substantial arguments in Committee and during the Bill's later stages, but perhaps their effect was delayed and it took time for Ministers to see the good sense of our proposals. Perhaps we should accept the possibility that the greater skills of advocacy of Members of the other place were responsible. I should like to put on the record a tribute to Baroness Miller of Chilthorne Domer and my other noble Friends who did an admirable job on the Bill. I should also like to record my thanks to Ministers for listening to us. It would be otiose to list all our amendments that were accepted, but had they not been, the Bill would have remained deeply flawed. It is much less flawed now, and I wish it well. Some points of contention remain, but on the whole, it is a much better Bill.

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The group of amendments that we are currently considering includes a new definition of agricultural land, and exemptions from the definition of open country. We pressed for that in Committee. I am not persuaded by amendment (a), which the hon. Member for South-East Cambridgeshire tabled, because—contrary to the comments of the right hon. Member for Penrith and The Border (Mr. Maclean)—it would introduce a new anomaly.

It was suggested that there was no qualification of amendment No. 2, which includes the phrase,

appears to the appropriate countryside body.

However, the next definition of open country in the Bill uses exactly the same formulation. Removing those words from amendment No. 2 would differentiate between the two provisions. I am not sure whether that is helpful. Although I understand the spirit in which the amendment was tabled, I do not believe that amendment (a) would add to the clarity of the definition.

Amendments Nos. 153 to 157, which apply to the area immediately surrounding dwelling houses, and—following moves by my noble Friends and others in another place—extend the provisions to cover buildings in which animals are kept, are extremely welcome. They will do a great deal to allay the fears of those who are worried about night access. I stress that the original measure needed to provide for a right to challenge someone who acts suspiciously near a property or domestic animals. The amendments would allow that because the land that immediately surrounds the buildings will not constitute part of the land to which people have access. That is an important consideration, which is now incorporated in the Bill.

1 welcome amendments Nos. 155 and 157, which deal with racehorse gallops. Those sensible provisions should have been included in the original measure. The matter could have been tackled quickly in Committee; that would have been preferable to the protracted process that occurred. However, we got them in the end. Racehorse trainers in my constituency, as well as in that of the hon. Member for South-East Cambridgeshire, will welcome the amendments because they improve safety and will allow them to carry on their business appropriately and safely.

We are considering a good group of amendments, which improves the Bill. The amendments were tabled largely at the suggestion of Liberal Democrat and Conservative Members. I hope that they will be incorporated in the Bill.

Mr. Maclean

The amendments constitute an improvement, as far as they go. Like my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice), I have some anxieties about them. Of course, one welcomes an amendment that exempts "improved or semi-improved grassland". However, I am worried that such exemption will be at the discretion of the appropriate countryside body, which would be the Countryside Agency.

The Countryside Agency is skilled in many ways and has some expertise; it would have more expertise if the Government were less parsimonious with funding. It is currently suffering dire cuts. Perhaps proper funding would enable it to be the "appropriate countryside body" and to exercise perfect discretion in determining what constitutes "improved or semi-improved grassland". However, the Minister could be laying himself open to legal challenges in future.

Mr. Mullin

The right hon. Gentleman may know that an extra —17 million has been announced for the Countryside Agency today. Some —10 million will be used for initiatives that were announced in the rural White Paper, which was published today. Additional resources include —2.2 million for rural transport and —3.5 million for areas of outstanding natural beauty and for preparations for the introduction of access to open country. I hope that the right hon. Gentleman will accept that, far from facing cuts, the Countryside Agency will benefit from a substantial increase in its budget.

Mr. Maclean

The Countryside Agency has been thrown a few sweeties and bawbees today, but they do not make up for the cuts that it has suffered during the past three years under this Government, especially since the previous bodies were amalgamated. The amalgamated agency did not have double the budget of the two agencies that it replaced. I shall not discuss the —2.5 million rural transport budget because I do not want to stray from the amendment. The new transport initiative of —15 million, which was announced today, involves about —300,000 per county, which should buy us a few scooters and mopeds in Cumbria, but that is all.

As for improved and semi-improved grassland, I suggest to the Minister that there will be many circumstances—I can think of hundreds in my constituency—in which it would be a matter of dispute whether grassland was improved, or semi-improved. The land around many hill farms is flat, or flatter, land—it may not be low-level land—and it is clearly improved or subject to cultivation. It may even be arable. At the tops of the mountains, one clearly reaches completely unimproved mountain land. However, there is a grey area, which in Cumbria is known as "inby" land.

The lower level of such inby land certainly looks like improved grassland. Anyone could see that bracken had been controlled and stones removed and one could guess from the difference in the grass quality that nitrogen had been put on it at some point during the past 30 years. However, it would probably not have been improved during the past few years, because farmers have had no money to make such an input. Higher up, however, inby land has not been improved, particularly during the past few years, because of the dire situation in farming. Grants would have been given in the 1950s and 1960s to deal with bracken, take the land in hand and improve it and to turn more of the mountainside into better quality grassland. However, if land is not touched for 20 or 30 years, bracken makes a quick comeback, as do brambles, whins—or gorse, as I should say in England—and birch trees.

To the uninitiated—to many people—inby land will resemble cleanish mountain land; it will certainly not resemble arable fields or the grass fields that many people expect to see in the countryside. The question is whether such land is improved or semi-improved grassland. Unless the Countryside Agency allows experts from the Agricultural Development and Advisory Service or other qualified organisations and farm advisory services to say, "Yes, that is improved or semi-improved grassland," and allows a nitrogen reading or a soil sample to be taken, how will it determine the matter?

The appropriate countryside agency will have to determine whether land is improved or semi-improved grassland, and I would be content to leave it to make that judgment if the Minister guaranteed that, even if the agency were minded to say, "No, it ain't," representations would be heard or evidence taken that, at some point in the past 30 years nitrogen had been put on the land in question, the brambles and bracken had been cut or other measures had been taken to improve it.

Mr. John M. Taylor (Solihull)

In my part of England, where we refer to gorse rather than whins, although I like the latter word, there has been an increasing tendency for grassland—or, for that matter, shrubland or woodland—to be converted into golf courses. I have no great objection to that because golf is a game that I like, but the number of courses is increasing at an alarming pace. Does my right hon. Friend have a view on that, in terms of ecology, habitat and the use of the natural environment?

Mr. Maclean

I certainly have, and I could expatiate on it at length, but I shall not do so in the context of the amendment, except to say that schedule 1 deals with golf courses. In Cumbria, we have some golf courses that are quite high up the hillside and, because they are 1,800 ft above sea level, they might almost fall under the definition of "mountain".

Mr. Bercow

Courses or gorses?

Mr. Maclean

Courses, not gorses.

I want an assurance from the Minister that the Countryside Agency will not reach a judgment relating to improved or semi-improved grassland merely by looking at a map, or by looking at the land in question. Yes, in many cases it has been possible to tell what is a mountain and what is improved grassland; but that is not true of thousands of acres of inby land in Cumbria which are halfway up the fell sides, between the farm buildings and the fell tops.

An uninitiated person, or someone having a cursory glance, would say, "That is not improved or semi-improved grassland. Look at the gorse bushes; look at the trees; look at the bracken. That is wild mountainside". Nevertheless, 10, 15 or 20 years earlier, the farmers owning the inby land might have put considerable resources into making it improved or semi-improved grassland. We need to hear from the Minister whether evidence of that nature will be acceptable.

I do not want the Minister to say, "It is what the land looks like now that counts". I do not want to be told that it does not matter that five years ago farmers improved the land by cutting down all the bracken and gorse and spending a fortune on nitrogen, and that now, because nature has partly reclaimed the land, the agency will say, "Tough luck. It does not look like improved grassland to us, so it has not been exempted."

Mr. Bercow

I am grateful to my right hon. Friend for giving way, and it is rare for me to cavil at anything he says in the Chamber; but what he is describing, at least on the face of it, suggests to me that a great deal of labour-intensive activity will be required. Is he confident

that that activity will be feasible, even in the context of the largesse for the Countryside Agency about which the Minister boasted a few minutes ago?

Mr. Maclean

I am grateful to my hon. Friend for his intervention—and I would cavil with him. The largesse of which the Minister boasted would certainly not cover the cost of the additional civil servants who would need to be hired to draw up the maps required to implement the legislation, and to inspect all improved or semi—improved grassland that is the subject of dispute—and there may be hundreds of thousands of acres.

The difficulty that the amendment poses for the Minister and the Countryside Agency is that it would insert a clause dealing with some of the most contentious land. There can be little dispute about what constitutes a mountain: according to the definition, it is land situated more than 600 m above sea level—whatever that is in proper measures of height. That definition is clearly indisputable: it is possible, through the Ordnance Survey—and by means of certain navigation equipment that some Members may possess—to reach an exact determination of the height of any piece of land above sea level.

The amendment, however—although I welcome it in general—introduces an area of potentially great dispute. Many of my constituents will be willing to testify that they have improved their grassland over the years. They may not have improved it much over the past few years, because they are suffering: the Government have driven them into crisis in rural areas, and they have no money to make improvements. However, we need to ensure that all the work that they, and their fathers and forebears, did to improve the land will not be discounted because some hard-pressed official from the Countryside Agency, suffering under the grossly inadequate funding provided by the Government, has to give that land a cursory glance and then reach a decision that he might not have made had he been allowed to hear proper evidence and representations from farming organisations and properly qualified country and soil experts.

Under Lords amendments Nos. 153, 154 and 155, land more than about 66 ft away from a building will not be regarded as open access land. I think that that is about the length of the Chamber. You will be pleased to know, Madam Deputy Speaker, that if you lived in a little cottage or a house on a hillside in Cumbria, the world and his dog—or dogs—would be allowed to roam at a distance about the same as that from where you are sitting to the main entrance of the Chamber, but could get no closer. You are welcome to visit my constituency, and I hope that you will be reassured to know that on a dark winter's night in Cumbria people will be allowed to ramble at night on land but will not be able to get any closer to a building than the length of the Chamber.

5.45 pm
Mr. John M. Taylor

This is when an Englishman might be able to help a Scotsman. A length of 66 ft is better known as 22 yd, which is also known as a chain. It is precisely the length of a cricket pitch. I say that as someone who played cricket for well over 20 years.

Mr. Maclean

It is always helpful to have experts. My hon. Friend is a lawyer and that was the first helpful intervention I have had from him in 20 years in the House. Although it seemed to have been given for free, no doubt we shall get a bill in due course.

Mr. Edward Leigh (Gainsborough)

Is it not too hilly to play cricket in my right hon. Friend's constituency?

Mr. Maclean

I do not wish to go down that route, but we have champion cricket teams in Cumbria, and that includes my constituency. It is a pretty good team that can play cricket in the hillier areas. We do not play on the flat lands of Gainsborough.

I do not want to labour the point. Although it is good that an exemption is built into the Bill so that people who wander over someone else's land in the dead of night are prevented by the new access rules from coming close to someone's home, a distance of 66 ft, or one chain—the length of the Chamber or a cricket pitch—is inadequate. It will not reassure country people.

If I understand the Minister correctly, the exemption will not apply when a house is at the entrance or main access to the land. Open moorland is on the other side of stone walls and fences. If the main route or stile to it is beside someone's home, the 66 ft exemption will not apply. If the main access, or one of the most convenient routes of access, on to open land is 2 yd from someone's house—and may mean brushing up against its wall—the exemption will not apply and people will be allowed to get that close, which worries my constituents more than anything else.

The vast majority of my constituents who live in upland areas or on footpaths have no objection to people properly using footpaths or walking sensibly on open land or hillsides. They have no objection to people passing through their fields provided that they do not let dogs roam or leave rubbish that pollutes the area and harms their animals. My constituents' one objection is when people push right past their windows and kitchens or go through the middle of their farmyards to get on to land. That is not a rare occurrence. It happens in hundreds if not thousands of cases.

When the so-called definitive map was drawn up years ago, the footpaths on it were mostly private paths between one farm and another, between the farm and church and between the farm and the village hall. They formed a network of little paths between farm buildings, farm workers' buildings and rural communities—the school, church, pub and hall. All those private paths are now public footpaths on the definitive map. It is understandable that, in the vast majority of cases, the public are able to walk through someone's farmyard and past someone's front door when they are exercising their legitimate right to use a footpath.

We can do nothing about it now. That grave injustice was created 30 years ago. It is difficult to move a footpath out of someone's garden or backyard, or away from someone's kitchen window. When you come to Cumbria, Madam Deputy Speaker, I can take you to homes where the public footpath goes right past the kitchen, bathroom or bedroom window. With the Bill and the amendment, we are creating a new problem. We are saying that the public will not be allowed to roam all over someone's home or building and must be kept 66 ft away—unless the building happens to be situated where the public want access to land.

There is one other difficulty that always arises in my constituency in respect of access to land. If people who wished to climb mountains and hills—I try to do so a little occasionally—used the Pennine way, for example, and spread themselves out evenly over it, there would be little damage and few problems. If all the people who used the Pennine way entered it at fairly spread-out points along its route, there would be little difficulty.

The problem is that people honey-pot. They go to areas where there is a nice little village and a pub that is close to an access point to the Pennine way. The same occurs on our hills and mountains. There is a heavy traffic problem in the Lake district. It is not that the traffic is spread out everywhere: it concentrates on the small roads that give easy access to the mountains. Those idle people who wish to walk on hills, but who are not properly dressed and have no proper footwear, drive halfway up the hillside, park at someone's farm gate, in someone's yard, at the school or at the mountain rescue station and enter through the nearest convenient route. Those areas become honey pots.

Some buildings are probably situated at the convenient entrances to open land and moorland. Those are the places where people go at night to park their car and to stroll up the hillside, or they park elsewhere and enter the land, going right past someone's house. That is the difficulty with the amendment. That is why it does not go far enough. People are allowed to come too close to someone's house at night. The distance should be much more than 66 ft. Those homes should still have an exemption, even though the pathway that runs past them is an access point. They should not be penalised just because people want to walk through their garden or right past their house at two in the morning to climb a hill.

Mr. Bercow

Is my right hon. Friend suggesting, for this is what I construe from his last remark, that the restriction on people going past other people's windows should apply only at night? At least arguably, a good case could be made for a comparable restriction during the daytime, especially in so far as we are concerned about elderly people at home who could be fearful of what they regard as an unwarranted intrusion.

Mr. Maclean

My hon. Friend is right. I would argue for the exemption and for the distance to be increased during the day as well as at night. I would argue, too, that pushing right past a home even if it is on the access route should be forbidden during the day as well as the evening. However, it is much more frightening for rural people during the evening or during hours of darkness. [Interruption.]

Madam Deputy Speaker

Order. Whoever has that mobile phone should switch it off.

Mr. David Wilshire (Spelthorne)

My apologies.

Mr. Maclean


Mr. Leigh

Will my right hon. Friend give way?

Mr. Maclean

I hope that my hon. Friend will have a chance to catch your eye, Madam Deputy Speaker, because I wish to conclude my remarks, if he does not mind. I have taken more interventions than I had intended.

I have made my points as forcefully as I can. They are serious. I hope that the Minister will be able to reassure me.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)

I shall not go over the previous debates in Committee about inby land, ffridd, coed cae land and all the other esoteric definitions that we might come across. Suffice it to say that I give amendment No. 2 a guarded welcome because it is likely to include much land that is used for hay and silage making, an issue that many Opposition Members were concerned about in Committee. Unfortunately, however—in my view anyway—other areas of permanent grassland will not be covered under the definition. I seek an assurance from the Minister that all land used for hay, permanent grassland and silage will be outwith the new right of access. That is important.

In the interests of brevity, I say that amendments Nos. 153 to 155 are a step in the right direction. I believe that 66 ft is three chains, not one, but that is perhaps an esoteric point—

Mr. John M. Taylor

No, it is one.

Mr. Llwyd

I am corrected.

Mr. Taylor

Politely, I hope.

Mr. Llwyd

Indeed. I would expect nothing else from the hon. Gentleman.

Those amendments are a step in the right direction. Some of us on the Committee were concerned that, during the lambing season, for example, or during inclement weather, animals would need to be brought into the buildings near the farmstead, or perhaps even into the farmyard for a limited period. During the first discussions of the Bill, that situation was not exempted, so it was open to anyone to walk through and do as they wished, but at least there has been a move in the right direction.

Some of the fears expressed by the right hon. Member for Penrith and The Border (Mr. Maclean) about the countryside body may be without foundation. I say that to try to be helpful. The access forum—I have one local access forum in shadow form in my constituency—is extremely important. It is important that not only the farming unions but all interests are on the forum—individuals, too. If the quality of the discussion in the forum is adequate, that will inform the countryside body in due course. However, even if I am wrong, there is a right of appeal if the countryside body gets it wrong. The right hon. Gentleman is right—there is concern, but I am trying to offer some explanation that I have picked up during the passage of the Bill. I may be wrong. The Minister will no doubt give the definitive answer, but I give the amendments a guarded welcome.

I echo what the hon. Member for Somerton and Frome (Mr. Heath) said. During the passage of the Bill, time and again the hon. Member for South-East Cambridgeshire (Mr. Paice) and I raised those points. As both hon. Gentlemen have said, much time could have been saved had concessions been given in Committee. It was a rather pleasurable Committee all in all, but unfortunately, whenever a reasonable point was put, we were met with either a blank stare or the reply, "We will go away and think about it." [Interruption.] Well, possibly not a blank

stare. We were met with an animated stare from the Minister—it was not at all blank, to be fair, but often there was not much progress. That is the point. With that guarded welcome, I accept that the amendments are a step in the right direction, at least.

Mr. Leigh

I am a keen walker. I live in the countryside and there is nothing I enjoy more than walking. Country people are reasonable about these issues. They recognise that, increasingly in the modern world, many people who live in cities want access to the countryside, particularly the beautiful countryside represented by my right hon. Friend the Member for Penrith and The Border (Mr. Maclean)—the Lake district. Country people understand that, but there must be a sense of balance.

The point that has been made about the concentration of visitors in certain spots needs to be borne in mind. I understand the difficulties under which the Government are labouring. Rightly, from their point of view, they want to open up access, but I emphasise a point that is of particular concern to country people, who respect the rights of city dwellers to walk in the countryside.

A point has been made about people walking close to isolated houses or visiting the countryside during twilight, or perhaps even when it is getting dark. In the city, there is no difficulty: everybody closes their curtains and people are accustomed to street lights and to people walking up and down the pavement. However, the House must be aware that there is a far greater sense of isolation in the countryside. I live in Lincolnshire in a completely isolated spot, so I know that rural people—perhaps unreasonably—have a fear of people walking close to their houses.

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Mr. John M. Taylor

I know of a house that has a footpath running right through the garden: Chequers. I do not know whether the Government have taken that into account, or whether my hon. Friend and I might take a walk through the garden of Chequers next weekend.

Mr. Leigh

I suspect that if my hon. Friend were to take a walk at night through the garden of Chequers, he would find the long arm of the law clobbering him in rather severe fashion.

My point about the sense of isolation is a serious one. In addition, many who live in isolated rural cottages do not close their curtains. After all, why should they? They do not overlook anyone and no one overlooks them. Most of the ground floor windows of my home do not have curtains. At night, one cannot see out because there is complete blackness outside, but there is a not unreasonable concern, especially among elderly people, that the world outside may be looking in on them. The House must be sensitive to such feelings, although I do not know what the solution might be.

Mr. Bennett

Does the hon. Gentleman accept that that is part of the rationale for the access forum? Finding the right access points to land will require considerable sensitivity. We want the forum to take all such matters into account and to propose access points that will not give rise to such problems.

Mr. Leigh

That is reasonable. I am sure that, with good will on all sides, it will be possible to achieve both access to the countryside and preservation of the sense of privacy of those who live in isolated cottages and farmhouses. Unfortunately, we all know from personal experience of the difficult positions that various countryside interests sometimes adopt, how difficult it is to re-route paths; doing so often becomes a long and complicated procedure. I do not know what the solution is.

Mr. Bercow

We know that the fear of crime is greater than the likelihood of it affecting us personally, but does my hon. Friend agree that the concern felt by people in the countryside at the prospect or the approach of unwarranted intruders is heightened by their knowledge that one of the side effects of the successful use of closed circuit television in town centres in the past few years has been that career criminals tend to seek new and better opportunities in outlying villages? Although we do not want to exaggerate the problem, that concern is justified and should be respected in public policy.

Mr. Leigh

That is a serious point. In discussions with rural Members of Parliament, local chief constables make the point that they have to put their resources where most crime takes place, which is in cities. Therefore, country people feel that local police are withdrawing from the countryside—which, in fact, they are. Such a feeling, coupled with access points, gives rise to concern.

I do not want to over-labour the point. I am a keen rambler and I want to have increased access to the countryside. However, if there is to be greater access and the distance from houses that people can walk is to be only 60 ft or so, I hope that there will be better procedures for re-routing paths. In areas such as the Lake district, there is plenty of room to do so. With good will on both sides, it should be possible both to ensure access to the countryside and to reassure country people. That is all I ask the Minister to try to achieve.

Mr. Mullin

I shall try to deal with the points raised in the debate. I do not want to get bogged down in who said what to whom in Committee. True, there are some issues on which the Government have changed their mind—we received an enormous numbers of representations—but there are others on which we are anxious to reassure those who are worried. In some cases, we believe that their fears are exaggerated, but we still want to reassure them, so we have erred on the side of caution.

The hon. Member for South-East Cambridgeshire (Mr. Paice) said that, in some cases, we have changed our mind. Well, in some cases, while the sentiments underlying the Opposition's proposals were reasonable, the amendments, they tabled were not helpful. Curtilage is one example of that. What we have done is quite different from what was discussed in Committee, but if we had done nothing, we would have been accused today of not listening, whereas in fact, we have taken into account people's concerns—indeed, we have bent over backwards to reassure them and to take account of the interests of all the relevant parties. There has been some acknowledgement of that in the debate, but I should like to hear a little more from the official Opposition.

Mr. Paice

I assure the Minister that however late the sinner repenteth, we are pleased to hear of it, so the fact that the Government have changed their mind on several issues is important. However, on the issue of curtilage, in Committee—I have quoted the relevant passages—the Minister said that defining curtilage in any form would not be helpful, yet that is what the Government are now doing. It is not that our form of words was inappropriate; our entire approach was rejected by the Government—but they now concede it.

Mr. Mullin

With respect, the hon. Gentleman is wrong. Amendment No. 153 does not define curtilage, but provides a separate exclusion around certain buildings. We were convinced of the need for such an area, but that is quite different from curtilage. The curtilage may extend further than 20 m or not so far, but it will still be accepted.

The hon. Gentleman asked about mines and quarries. We must not dwell on the matter now, as we shall debate occupier's liability in due course, but it is correct to say that a minimum level of liability remains in respect of mines and quarries on access land, and we believe that it should remain. We shall address the matter further at the appropriate point.

As the hon. Gentleman knows, we received strong representations from the horse racing industry regarding horse training and gallops. Our amendment does not exclude people permanently from horse training areas, only from areas that are habitually used for training, and only in the morning and when the areas are in use. I am sure that the hon. Gentleman understands that.

The right hon. Member for Penrith and The Border (Mr. Maclean) provided an example of the sort of filibuster that might have faced us had we not had the foresight to impose a guillotine. In an intervention, he asked why there was a clear definition of mountains, but not of improved or semi-improved grassland. The answer is simple: unlike some other categories of open country, mountain terrain can be simply defined. Such land is clearly shown in the Ordnance Survey map by reference to the 600 m contour.

As for the Countryside Agency, we believe that that is the right body to make the necessary decisions. It is an expert, neutral body. We are leaving it neither to walkers nor to landowners to decide what land falls into which category. The countryside body will examine any relevant evidence when deciding whether land constitutes open country and it will be for that body to draw up the relevant criteria.

I thought that the hon. Member for Gainsborough (Mr. Leigh) made his points very reasonably, and he touched on the fears of some people who live in isolated areas. Many of the amendments that we are making are an attempt to reassure those people.

The right hon. Member for Penrith and The Border made quite an issue of people who live in remote parts of his constituency—which I, too, have walked from time to time. Most people in the United Kingdom live within a metre or two of a public road, and they are happy to tolerate occasional intrusions on their privacy. Nevertheless, I do understand and accept the point.

I think that the answer to the point made by the hon. Member for Gainsborough is really the one mentioned by my hon. Friend the Member for Denton and Reddish (Mr. Bennett)—it is for the access forums to try to take some of the issues into account. As the hon. Gentleman conceded, there are no simple solutions. In any case, these problems would arise regardless of whether this Bill existed. Countryside access has usually not caused much problem in areas where it has long existed, and we do not believe that it will cause much problem in this case—[Interruption.] Is the hon. Member for South-East Cambridgeshire trying to intervene?

Mr. Paice

indicated assent.

Mr. Mullin

Please do.

Mr. Paice

I am always willing to help the Minister find his place. He has dealt with the comments made by my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) on the agency's role in deciding what is improved or unimproved grassland, but he has not dealt with my amendment (a).

Mr. Mullin

indicated assent.

Mr. Paice

I should be grateful if he would explain whether the agency's opinion will be contestable by, for example, landowners who may believe that their land should not be mapped as open country.

Mr. Mullin

Yes, a legal challenge is still possible. The courts could quash any decision if irrelevant considerations are taken into account or the conclusion is wholly unreasonable. I shall deal in a moment with the hon. Gentleman's amendment (a).

I am grateful for the guarded welcome given by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) who, like the hon. Member for Somerton and Frome (Mr. Heath), played a very intelligent and constructive role in our Committee proceedings. I am glad that they accept that we have attempted to deal with many of their concerns.

The hon. Member for Meirionnydd Nant Conwy asked about all land capable of producing a crop of hay. We do not believe that it would be satisfactory to exclude all such land from maps of open country, as potentially that would disallow access to most areas of traditional semi-natural down. In practice, because unimproved grassland tends to be of low productivity, there is very little downland that is used for hay.

We understand that there is a small number of unimproved grassland sites that are cut for hay, or that are periodically cut for hay, that may qualify. We do not, however, believe that the potential for generating a crop of hay on downland makes it inconsistent with the right of access. Where, infrequently, farmers intend to take a crop of hay, they may use voluntary measures to promote the use of paths, or use their discretionary 28 days to require the restriction or exclusion of access. If such measures are insufficient, farmers may seek directions under chapter II of the Bill for the purposes of land management where a hay crop is regularly taken from the land, and the relevant authority can make a direction

which has effect for the appropriate period every spring or summer. Therefore, there is not really any reason why problems should arise.

Amendment (a) to Lords amendment No. 4 provides that, in deciding whether land consists of improved or semi-improved grassland, the test should not be whether the land appeared to the countryside body to so consist, but simply whether it was improved or semi-improved grassland. The Bill already provides, in clause 1(2), that open country is land which appears to the appropriate countryside body to consist wholly or predominantly of mountain, moor, heath or down. 6.15 pm

It is both important and desirable for the bodies charged with mapping open countryside to be able to take sensible decisions about the extent of open countryside on the basis of careful and reasoned analysis. In the same way, it is sensible for the same principles to apply to the identification of land that does not form part of mountain, moor, heath or down because it is improved or semi-improved grassland.

Lords amendment No. 2 is, therefore, consistent with the Bill. We envisage that the countryside bodies will publish the criteria that they will use to identify improved and semi-improved grassland in the same way as they have already published draft criteria for the identification of mountain, moor, heath or down. However, the identification of such land is not an automatic exercise, and involves more than the simple application of a set of rules.

The countryside bodies will need to exercise a degree of expert judgment. The words of the Bill reflect that, and—incidentally—are derived from similar expressions used in the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968, both of which were much quoted in Committee. To miss out the words "appearing to them" might well mislead people into thinking that no element of judgment is involved. The countryside bodies will exercise their discretion impartially, favouring neither landowners nor walkers.

Landowners will, however, also have a right of appeal to the Secretary of State or the National Assembly for Wales if they do not believe that their land consists wholly or predominantly of open country, including if they believe that the land is improved grassland and therefore not mountain, moor, heath or down at all. That right of appeal—which, of course, is not available to walkers—will provide a safeguard for their interests.

Therefore, Lords amendment No. 2—I think that the hon. Member for South-East Cambridgeshire is satisfied on this point—is intended to provide reassurance to land managers that the right of access is primarily about access to unimproved, semi-natural and open countryside. I suggest that amendment (a) is therefore unnecessary, and I should be grateful if he did not press it.

Lords amendment agreed to.

Lords amendments Nos. 2 and 3 agreed to.

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