COMMONS AMENDMENT (Hansard, 19 October 1981)

§ The Earl of Avon
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 131, 132 and 133. Amendment No. 131 deals with two entirely separate subjects. The first part relates to the provision of boundaries when building or improving a road. We had considerable discussion on this at Report stage, and in another place there were many representations that highway authorities have sometimes set up fences in areas where stone walls are normal, and that there should accordingly be some formal duty or discipline operating in such areas so that highway authorities are bound to consider whether walls would be the appropriate form of boundary. It was accepted in another place that, wherever a highway authority has decided to provide boundaries for its own purposes and at its own expense, it should consider building walls where they are the local form of boundary construction. The first part of Amendment No. 131 achieves this end.
The overall effect of the amendment, is to establish that when, in certain areas, a highway authority decides that some form of highway boundary is required for highway purposes, it has a duty to consider whether a "traditional style" wall will be the appropriate boundary. This particular amendment applies only to Scotland. The second part of Amendment No. 133 makes identical provision in England and Wales.
The second part of Amendment No. 131 deals with penalties for burning heather and grass out of season or in an unsafe manner. The amendment also removes the provision in the Hill Farming Act 1946 for one month's imprisonment (30 days in Scotland) for illegal burning. This is in line with the Government's policy of reserving a provision for imprisonment only for those offences which involve considerable dishonesty or danger to the public.
Amendment No. 132 is a drafting amendment. Amendment No. 133 relates to four different subjects. The first and last subsections provide for references to the Bill to be inserted in other legislation in place of references to earlier provisions which are to be superseded by the Bill. The second subsection of Amendment No. 133 is the counterpart to the first subsection of Amendment No. 131, and makes provision for traditional walls or fences in England and Wales. Finally, the third subsection corrects a defect in the Highways Act 1980. Section 136 of this Act allows highway authorities to make orders requiring that hedges be trimmed or cut back to prevent damage to highways. My Lords, I beg to move.

§ Lord Stanley of Alderley
My Lords, I am sorry to stop the rush, but I must make a few remarks on these amendments, particularly as my noble friend Lord Buxton obliquely referred to this amendment when he 632 was speaking to his Amendment No. 105A. I have to put him right, if he had it wrong—I am not certain that he did—but we have to accept that there is no obligation whatsoever on the authority to fence, except where there is a motorway. I should like to ask my noble friend whether he can give me some assurance on how the Government see this amendment working in other places, on roads other than motorways.
Do the Government accept the philosophy of this amendment which was put in by another place—which I may say they did not accept here—and the philosophy that was brought out in another place by my honourable friend Mr. Monro? He said, As I said early, the Department of Transport has this corps of landscape architects and has made full use of the Royal Fine Art Commission. I should be singularly disappointed if I learned that they had not taken the initiative when dealing with major new motorways and trunk road systems. That is what they are there for".—[Official Report, Commons, Standing Committee D; 25/6/81, col. 1209.] What I am asking my noble friend is: What action will the Government take to enforce and encourage themselves, as opposed to county councils who usually behave very much better than the Department of Transport or the Welsh Office, to pay some regard to fencing in the manner suggested in this amendment?

§ Lord Melchett
My Lords, I supported the noble Lord, Lord Stanley, and others when they moved a similar amendment in your Lordships' House, and I am delighted that another place accepted it. I see it as a very useful precedent to be applied to those who put up buildings, whether farm buildings, housing or whatever in areas such as National Parks. Hopefully, we shall soon have a legislative provision that they should also construct things in a particular stone that is a feature of the countryside. I shall not press the noble Earl to give a definitive reply on that as yet, but will allow the noble Lord, Lord Stanley, to think about it for a while

§ The Earl of Avon
My Lords, I have been assured that the Department of Transport and the Welsh Office have every intention of applying the new power in the spirit and letter of this amendment. That is to say, when they decide to provide boundaries for highway purposes in areas of countryside where walls are the traditional form of boundary, they will now be more likely to build walls rather than fences. However, there may be cases where the financial burden would really be prohibitively disproportionate.
I am bound to say that the amendment of Section 80 of the Highways Act 1980 does not alter the position that the highway authorities have no statutory obligation to fence highways, or to build new boundary walls to replace any which have to be demolished for roadworks. This remains a matter for negotiation between the authority and the landowner in the context of compensation for the land taken from him, and depreciation in the value of the land he retains. Subject to this the department has been very willing to meet owners' wishes about fences or walls; and, indeed, in exceptional cases, to consider meeting the extra costs of providing walls as accommodation works where there are overriding amenity or environmental grounds to justify the additional cost to public funds. It is intended to 633 commend this approach to local highway authorities. I hope that those assurances will satisfy my noble friend.