HL Deb 26 July 1967 vol 285 cc893-908

11.59 a.m.

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Shackleton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 24:

Acquisition by local planning authorities of land for public access

24.—(1) Where it appears to a local planning authority, as respects any land in their area which is or which gives or forms part of access to open country,— (a) that it is requisite that the public should have access to that open country for open-air recreation; and the authority may acquire the land compulsorily.

THE EARL OF DUNDEE moved, in subsection (1), after paragraph (a) to insert: (b) that it is impracticable to obtain such access by means of an access agreement or access order; and

The noble Earl said: On the resumption of the Committee stage of the Bill, I should like to say that when my noble friend and I and some of us were asked how long the Committee stage would take, we replied that we could deal with it easily in one day if given a full day. On Thursday we were docked at one end by a rather lengthy Government Statement and at the other end by the discussion on the Brighton Marina Bill. We got only two and a half hours. Now our small ration of time this morning has been cut by fully half an hour by two very lengthy Government Statements. I hope that the Government will really try to do their best to meet the convenience of those noble Lords from Scotland who have to make their plans several days in advance in order to get here for this kind of business. I am sure that the noble Lord will do his best to meet us.

LORD SHACKLETON

May I reply to the noble Earl? Certainly we will consider anything. I can only repeat my sympathy. If there is a way round these difficulties, I will go into action with my noble friend the Chief Whip to see whether we can do something.

THE EARL OF DUNDEE

I thank the noble Lord very much. I hope that at least we may not be interrupted any more in the meantime by Government Statements.

The Amendment which I beg to move is to insert a new paragraph (b) in subsection (1) of Clause 24. It is similar to the Amendment accepted in another place in regard to Clause 21, which deals with paths. In the terms of that Amendment, which the other place accepted, compulsory powers can be put into operation only if it appears to the local planning authority impracticable to create a path by means of a public path creation agreement. It seems to us that similarly we should have this provision in Clause 24, that compulsory powers may be put into operation only if it appears impracticable to obtain access by means of an access agreement. I think that this Amendment would be consistent with the next Amendment, No. 28, in the name of the noble Lord, Lord Hughes, and if both these Amendments were agred to, it would follow that subsection (2), which it is the purpose of Amendment No. 29 to leave out, would be unnecessary. I beg to move.

Amendment moved— Page 22, line 18, at end insert the said paragraph.—(The Earl of Dundee.)

LORD HUGHES

My Lords, The noble Earl said that this Amendment runs with the one which I shall be moving next. The Government are prepared to accept the Amendment in principle. However, its drafting does not quite fit in, and if the noble Earl will agree to withdraw the Amendment, I will undertake to put down an Amendment at the next stage along these lines, in words which fit otherwise with the Bill.

THE EARL OF DUNDEE

I am grateful to the noble Lord, and I beg to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD HUGHES

In moving this Amendment, I would point out that with the Bill as drafted there is some doubt whether the local planning authority would have power to acquire land for access by agreement. The purpose of the Amendment is to remove that doubt, and I hope that the Committee will agree to accept it. I beg to move.

Amendment moved— Page 22, line 22, after ("may") insert (",with the consent of the Secretary of State, acquire the land by agreement, whether by way of purchase, feu, lease or excambion, or")—(Lord Hughes.)

On Question, Amendment agreed to.

THE EARL OF DUNDEE: I beg to move Amendment No. 9.

Amendment moved— Page 22, line 23, leave out subsection (2).—(The Earl of Dundee.)

LORD HUGHES

I accept this Amendment.

On Question, Amendment agreed to.

Clause 24, as amended, agreed to.

Clause 25 [Acquisition by Secretary of State of land for public access]:

THE DUKE OF ATHOLL

had given notice to move to leave out Clause 25. The noble Duke said: With a view to the time factor, I will discuss this clause on Report stage.

Clause 25 agreed to.

Clause 26 [Maps of land subject to public access]:

THE DUKE OF ATHOLL moved, in subsection (2) after "map" where that word occurs a second time, to insert and lists specifying any restrictions applying to the land or any part thereof".

The noble Duke said: I think it would be useful if the local authority, as well as displaying a map, should also, if practicable, display lists specifying any restrictions applying to the land to which the map refers. This will enable people to find out more easily exactly which parts are subject to access agreements and what restrictions there are on these parts, if any. I beg to move.

Amendment moved— Page 24, line 23, after ("map") insert the said words.—(The Duke of Atholl.)

LORD HUGHES

I think this Amendment stands with Amendments Nos. 31, 32 and 33. I am prepared to accept the principle of these Amendments. I do not think there is any doubt that the subsection can and ought to be improved, but I should need a little more time to consider how best this could be done. If the noble Duke will accept my assurance that we accept the principle of the Amendment, I would ask him not to press this or the three succeeding Amendments.

LORD DRUMALBYN

The noble Lord, Lord Hughes, has referred to Amendments No. 32 and 33, as well. May I ask him whether he will say what his attitude is on those Amendments? The reason why I put those Amendments down was because it seemed to me that such maps will certainly be of great use. They are available now, in certain circumstances, and where they are available they are greatly used. They have an additional advantage in that they tend to canalise people into coming in by the proper means of access. If you put a map there, people use the proper means of access and do not approach by other means. There are great advantages in this. I know of no case where it would be impossible to provide a map of the appropriate means of access, and it seems to me to be not unreasonable to suggest that this should be mandatory, and also to give the local planning authority the opportunity to place maps in other places—that is to say, to arrange for them to be put up in hotels and other places where people would use them.

LORD HUGHES

With a view to facilitating progress, I was speaking to the noble Duke earlier, and I am sorry that the noble Lord, Lord Drumalbyn, did not have the benefit of that discussion. I should like to say briefly, in answer to his question, that we accept that maps and restrictions ought, if it is possible so to provide without making too onerous a requirement on local planning authorities, both to be available for public inspection and to be displayed at the main access points to access land. The difficulty is that in so many cases the access to the kind of land about which we are talking can, with little effort and no harm to anyone, be made from anywhere on those boundaries. I will, however, see what can be done about providing a suitable form of words on the Report stage, and it is on this understanding that I invite both noble Lords not to press these Amendments at this stage.

THE DUKE OF ATHOLL

I thank the noble Lord for accepting these Amendments in principle, and beg leave to withdraw Amendment No. 30.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 [Provisions as to danger areas]:

On Question, Whether Clause 27 shall stand part of the Bill?

LORD DRUMALBYN

I should like to ask a question on this clause. This is an important clause, and it is a little difficult to see for what purposes it is going to be used. We have already dealt with the clause dealing with fire risk. It is not quite clear what dangers the Government have in mind here. Are they, for example, to do with military training areas, practice firing areas, and so on? Are they to do with stalking risks? This seems to be a wide clause, and as this is a Committee stage, I think a little explanation on it would be helpful.

LORD HUGHES

I am afraid that in attempting to make as much speed as possible on the Amendments I have come across without my notes on the clauses, and without them I could not talk very intelligently on Clause 27. As the noble Lord is aware, I shall be making a statement on the Schedule in relation to the general position of access, and if it suits his convenience, I will have tacked on to that a statement about the effect of this clause. It will give me an opportunity, perhaps at some time in the early afternoon, of having a look at it.

LORD DRUMALBYN

Despite the fact that the missing documents now appear to have arrived. I am willing to accept the noble Lord's offer.

Clause 27 agreed to.

Clause 28:

Boundary notices

28. A local planning authority shall have power to erect and maintain notices indicating the boundaries of land comprised in an access agreement or order and of excepted land.

12.8 p.m.

THE DUKE OF ATHOLL moved to leave out "have power to". The noble Duke said: This clause gives the local planning authorities power to erect boundary notices at the edge of land comprised in access agreements or access orders, and also boundary notices to show where the excepted land starts. As one of the main difficulties that I visualise under the Bill is communication between the local planning authority and the public about what parts of the country are subject to access agreements, and exactly what limitations they have on them, this clause and the second part of Clause 26 have quite a lot in common.

I should have liked it to be mandatory upon the local planning authorities to erect boundary notices showing the edge of the land to which access agreements apply. I realise that it will be impossible to erect boundary notices where the public can go on to or off the land, but I should have thought such notices were well worth while at any place where there is a footpath, or something like that, on to or off the land in question. I have therefore suggested that the words "have power to" should be deleted from the clause, which would then read: A local planning authority shall erect and maintain notices indicating the boundaries of land … The noble Lord will probably say that this would be too difficult and would mean that they would have to erect them everywhere, which would be untidy and ugly. I entirely agree with him on this point. Perhaps I ought to have added, "where practicable". Meantime, I beg to move the Amendment as it stands.

Amendment moved— Page 25, line 32, leave out ("have power to")—(The Duke of Atholl.)

LORD HUGHES

This Amendment was looked at in another place. In fact, I think that a quite disproportionate amount of time was spent in looking at it in another place, and I do not wish to say much about it here, because we do not have time to repeat what they said elsewhere. The main difference between us seems to be in the way of going about achieving the same end; namely, the erection of sufficient notices at suitable places. The circumstances of each case will determine how many notices will be required and where they will best be situated. We cannot legislate for this—the clause as it stands does not pretend to do this—and the letter of the proposed Amendment could be met, for instance, by the erection of two notices anywhere.

The only reasonable way to go about this in practice is to look at each individual case. In an agreement an owner or occupier can arrange for suitable numbers and placings of notices. In the case of an order, the local planning authority will set out their proposals and the Secretary of State can vary the order or impose conditions in it, if he thinks these proposals are inadequate. The clause gives them the power, and the Government think that any authority prepared to go to the trouble and expense of making an agreement or an order will surely be willing to mark its boundaries at appropriate places. In practice, therefore, the Amendment is unlikely to achieve anything more than the clause as drafted, and I would ask the noble Duke not to press it. In these matters we are seeking to work on the basis that local authorities are responsible bodies and in the majority of cases can be trusted to exercise their powers as well as fulfil their duties in a reasonable way, and I see no reason to believe that this case would be an exception.

THE DUKE OF ATHOLL

I have listened to the noble Lord with great interest, and for the moment I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Clause 29 [Power of local planning authority to contribute to work carried out by other persons]:

THE DUKE OF ATHOLL

Clause 29 gives local planning authorities power to contribute to the erection of notices about danger areas under Clause 27(4). I am suggesting that they should also have power to contribute to notices erected under Clause 26(2), showing where the public may enter land to which access agreements or orders apply. I beg to move.

Amendment moved— Page 25, line 42, at end insert ("or section 26(2) above ").—(The Duke of Atholl.)

LORD HUGHES

I accept the noble Duke's Amendment.

On Question, Amendment agreed to. Clause 29, as amended, agreed to.

Clause 30 [Creation of public paths by agreement]:

BARONESS ELLIOT OF HARWOOD

Clause 30 deals with the creation of public paths by agreement, and I want to ask the noble Lord whether the Bill in its present form provides that rights way established in Common Law will be covered by Part III of the Bill. The purpose of the Amendment is to make clear that existing rights of way at the date of the commencement of the Bill are also covered by these provisions. This is a matter which has been discussed in another place, but it is not clear whether Clauses 34 to 36 will apply to public rights of way, whether created before or after the commencement of the Bill. I beg to move.

Amendment moved— Page 26, line 15, at end insert ("and, for the purposes of sections 34, 35 and 36 of this Act, includes any such way existing at the commencement of this Act").—(Baroness Elliot of Harwood.)

LORD HUGHES

My Lords, may I refer the noble Baroness to Section 38(1) of the Bill which reads: Sections 34 to 36 above shall apply in relation to all public rights of way, whether created before or after the commencement of this Act. This completely meets the point of the noble Baroness's Amendment.

BARONESS ELLIOT OF HARWOOD

I am delighted to hear that and have great pleasure in withdrawing the Amendment.

Amendment, by leave, withdrawn.

THE DUKE OF ATHOLL

This is an Amendment on rather the same lines as the last Amendment, but with a slightly different objective. It is to clarify the point whether or not Clauses 54, 55 and 64, dealing with bylaws and wardens, apply to rights of way already existing. I think that it is essential that they should, because presumably existing rights of way will go through land which will be subject to access agreements, and it would seem strange if wardens did not have power on these rights of way. I feel that as a result of this Bill existing rights of way will get greater use, that the litter problem will become greater, and that it might be awkward if by-laws cannot be applied to them. Therefore I hope that the noble Lord will be able to say that existing rights of way are subject to the clauses on by-laws and wardens. I beg to move.

Amendment moved— Page 26, line 15, at end insert ("and, for the purposes of sections 54, 55 and 64 of this Act, includes any such way existing at the commencement of this Act")—(The Duke of Atholl)

LORD HUGHES

Throughout the preparation of this legislation the Government have been anxious not to weaken or in any way prejudice the current provisions governing rights of way and the manner in which the public have traditionally been able to enjoy them. I therefore feel very reluctant to accept the effect of this Amendment, which would enable by-laws to be made and wardens to be appointed in relation to existing rights of way when these have functioned for many years without such provisions, and especially when we do not in any case envisage such controls being widely needed on public paths as distinct from areas of access land. If circumstances should arise where it is felt that some form of by-law or warden control is desirable over an existing right of way—and this would probably in any case be where the way leads to an area of access land—then it would seem appropriate that the local planning authority concerned should transform the right of way into a public path, by agreement, I would hope, and they would then be in a position to promote the by-laws required. In the circumstances, therefore, I hope that the noble Duke will not seek to press his Amendment, which would confer a wide power over existing rights of way to deal with what, so far as I am aware, is probably only a very restricted problem.

THE DUKE OF ATHOLL

I thank the noble Duke for his reply. If we were to make an existing right of way into a public path, with whom would we get agreement? Probably we would get agreement with the owner and occupier concerned, but I should have thought that the Rights of Way Society and suchlike organisations may feel that they have a part to play in this before existing rights of way were converted into public paths, with all that goes with that conversion. I should have thought that it would have been much easier to make it possible for these clauses of the Bill to be applied to existing rights of way. I fully realise that at the moment the noble Lord cannot go any further, but perhaps he might consider this point before Report stage. If not, I feel that I would have to raise the matter again. If the noble Lord has nothing further to say, I beg leave to withdraw this Amendment, but warning him that I shall come back to it at the next stage.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clause 31 [Compulsory powers for creation of public paths]:

On Question, Whether Clause 31 shall stand part of the Bill?

12.20 p.m.

LORD DRUMALBYN

May I ask two questions on this clause? There is no Amendment down, similar to Amendment No. 44, but should I be right in assuming that it is the intention, at any rate, of the Government that local planning authorities should not make orders unless they had attempted and failed to make access agreements? Secondly—and this is largely on the same point—should I be right in assuming that in practice they would invariably consult the owners and occupiers of the land before making an order of this kind? I think that this matter is covered by Schedule 3.

LORD HUGHES

The answer to both the queries put by the noble Lord is, Yes. I would direct his attention to lines 28 and 29.

Clause 31 agreed to.

Clauses 32 to 36 agreed to.

Clause 37 [Compensation for creation, diversion and closure of public paths]:

THE DUKE OF ATHOLL

This Amendment is a purely probing Amendment. I should like to know whether people who are caused disturbance as a result of a public path creation order, or public path diversion order, but who are not actually physically affected by it, have a claim for compensation. If a footpath were diverted, and instead of going behind a hill, from which it could not be seen from a house, went in front of the house, and people threw bottles and litter into the garden, would the occupiers of the house who were thereby caused annoyance have any claim for compensation? I beg to move.

Amendment moved— Page 31, line 39, leave out subsection (4).—(The Duke of Atholl.)

LORD HUGHES

In this clause, dealing with compensation, we must limit the right to compensation to those directly affected by the creation, diversion or closure of public paths. It is entirely in accordance with established principles to limit compensation to persons with an interest in the land over which the path runs or in land in the same ownership. At the same time, we wish to preserve existing rights of owners of adjoining land in those cases where they have a legal interest in the land over which the path runs. If, for example, an owner enjoyed the benefit of a real burden or other restriction against the creation of such a path by voluntary agreement, and would have been able to take legal action to prevent such an agreement, subsection (4) would preserve his position and entitle him to consideration for compensation. This, I think, is quite fair.

THE DUKE OF ATHOLL

I do not think the noble Lord has quite answered the point. If a footpath is diverted, and the path is much nearer to someone's garden, and he has bottles and litter thrown into his garden—and the fire damage, too, is obviously increased—will he be able to get any compensation in such a case? I think it is a point of some importance.

LORD HUGHES

I think that if the land on which the diverted path exists is in the same ownership as the garden is, then the point will be covered; but if it is not in the same ownership, then of course it will not be covered.

THE DUKE OF ATHOLL

Would the noble Lord consider covering it? I fully realise that it will not apply in a very large number of cases. But it seems very unfair that if you have a garden which has not had a path near it for many years, if someone suddenly decides to divert an existing right of way, under this Bill, so that a path goes past your garden, with the result that you suffer this extra disturbance, there is no way of getting any compensation for it.

LORD HUGHES

If the likelihood of such a nuisance were obvious, I should think that this would probably be a very sound reason for not having the diversion. It certainly would not take place by agreement unless the adjoining owners were on tolerably friendly terms with each other; it would not take place if an owner felt that bottles were likely to be pitched into his garden by the owner of adjoining land. We do not think that that is the usual situation that exists between neighbours, particularly in this sort of area. But I will look at the matter, although I must point out to the noble Duke that it is very difficult to breach a principle so that compensation may become payable to somebody who does not have a direct interest in the land which is affected.

VISCOUNT MASSEREENE AND FERRARD

May I point out that when you have main roads going through your land, as I have, you frequently get a lot of bottles and other litter on land. But, so far as I know, it is never possible to get compensation. I should certainly like to back up my noble friend the Duke of Atholl. I think it would be an excellent idea if one could get compensation; but how one could get it, I do not know.

LORD HUGHES

The noble Viscount speaks of a road going right through his land. The answer which I have given makes it perfectly clear that in that particular case compensation would be available against likely loss. But the point the noble Duke is raising is where a path is diverted, not on to someone's land, but on to land adjoining it, in such a way as to interfere with his proper enjoyment of the use of his own land.

LORD SALTOUN

May I press the noble Lord to examine this matter with great care? I have very long experience of life in the country (if I take into consideration my father and his friends, as well as my own life, it comes to nearly a century of it), and I know of a good many cases where adjoining owners are not on the best possible terms. It is bad legislation to have a law so that one man, by taking advantage of the law and his position, can inflict an injury on another. I say that to answer what the noble Lord, Lord Hughes, said: that most adjoining owners are on the best possible terms. I do not think that is necessarily the case, and I submit that legislation which assumes it is must be bad legislation. One ought to take all sorts of factors into consideration.

LORD HUGHES

I think the noble Lord is overlooking the fact, which I pointed out, that this diversion would be the subject of either an agreement or an order. And surely one would expect that the owner of a garden who thought he was going to be adversely affected, because of the fact he was on bad terms with the man who might be making the agreement, or accepting the order, would, in these circumstances, make his point of view well known. I did not say that everybody in Scotland was on good terms with his neighbour. What I said was that the majority of them were.

THE DUKE OF ATHOLL

On the assurance that the noble Lord will look at this point, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

Clause 38 [Supplementary provisions as to creation, closure and diversion of public paths]:

LORD HUGHES

If I might speak to Amendments 39 and 40, I would say that these are linked drafting Amendments. The three extra prepositions are needed to make the wording sufficiently comprehensive to cover all the possibilities. May I take this opportunity of informing the Committee that my noble friend Lord Shackleton has just told me that it will be possible to sit until a quarter to two, if we can make a special effort to get through the whole of our proceedings on this Bill by that time. I beg to move.

Amendment moved— Page 32, line 41, leave out from beginning to ("which") and insert ("under, in, upon, over, along or across").—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES: I beg to move Amendment No. 40.

Amendment moved— Page 33, line 12, leave out from ("there") to ("the") and insert ("was under, in, upon, over, along or across").—(Lord Hughes.)

On Question, Amendment agreed to.

Clause 38, as amended, agreed to.

Clause 39 [General provisions as to long-distance routes]:

12.30 p.m.

THE DUKE OF ATHOLL

This is the clause which sets up the long-distance routes, and it is anticipated that these routes will be used not only by people on foot but also by people on horseback and on bicycles. Therefore the only practical means of access and egress from one enclosure to another will be gates, and I want to put in an Amendment that these gates should be self-shutting gates. It is obvious why it would be better if they were self-shutting gates: people would then not be able to leave them open, which in that part of the country would cause a lot of difficulty and trouble. I beg to move.

Amendment moved— Page 33, line 39, after ("paths") insert ("including the provision of self-shutting gates").—(The Duke of Atholl.)

LORD HUGHES

These three Amendments, Numbered 41, 42 and 43, in the name of the noble Duke, have drawn my attention to the possibly too restricted range of matters on which the Commission may report on long-distance routes. However, I should like to be sure that we should not fall into the danger of appearing to make the list exhaustive—and therefore inevitably restrictive, if by mischance we left something out—by adding these further items. For that reason I should prefer not to commit myself today, but to undertake to look further at this clause, with a view to amending it at Report stage and perhaps to add a generalisation like that in the opening words of Clause 54(2). If we did that in might in fact avoid some consequential Amendments in Clause 34(5).

However, I must say that I am not attracted by the proposal in regard to self-shutting gates. This is really a matter of detail for a particular case, and the Commission's Report should cover the proposals in broader principle. I have no real objection to adding a reference to picnic places, although I wonder whether they are really appropriae to long-distance routes. After all, the Scottish hills are full of natural picnic places, and one of the joys of the long-distance route is the chance it gives to get away from over-organised welfare provisions. The noble Lord, Lord Balerno, had a wise word of warning about too much paternalism in his Second Reading speech.

The third Amendment is not really needed because, strangely enough, the Scots Parliament of 1424 has already attended to this point, and it might be of interest if I read it. It reads as follows:

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