§ 3.26 p.m.
§ Viscount Goschen rose to move that the draft regulations laid before the House on 18th January be approved [16th Report from the Joint Committee.]
§ The noble Viscount said: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Strathclyde.
§ The regulations were laid before the House on 18th January 1993 and, if approved, will come into force on 15th March 1993. The regulations are made under Section 150 of the Local Government and Housing Act 1989 which enables local authorities to charge for services, subject to the making of the appropriate regulations. They will allow authorities to recover from applicants the whole of an authority's advertising costs and up to £400 in respect of its actual administrative expenses in making a public path order and, where an order covers more than one proposal, a further £75 for each additional path.
§ The orders provide for the diversion or stopping up of public footpaths and bridleways. They are made by county and district councils for a number of purposes, but primarily in the interests of the owner or occupier of the land or of the public (in the case of diversions), or to enable development to take place, or because the path is not needed for public use (in the case of extinguishment). The local authority must advertise such orders in at least one local newspaper. If there are no sustained objections the local authority can confirm the order. If there are objections, however, the order may be referred to the Secretary of State for the Environment and a public inquiry may be held.
§ The principle of charging is a simple one. A landowner or developer who may reasonably expect to benefit from the stopping up or diversion of a public path should be expected to pay for the order which achieves this. The power to charge is nevertheless discretionary and authorities can choose to waive part or all of the charge; for example, in cases of hardship or where a proposed diversion brings with it additional benefit to path users. Authorities are also specifically required to refund charges in certain circumstances; for example, where they fail to proceed with an order or where the order proves subsequently to have been made invalidly.
§ We believe that these regulations are needed and that the proposed charges are fully justified. They will 17 enable authorities to recover a significant proportion of their costs while providing applicants with a clear indication of what they may reasonably expect to pay. They will also encourage applicants to put forward proposals that are demonstrably of benefit to the public, which will gain general support and which may secure a reduction or waiver of the charge and should therefore help to secure positive changes to the rights of way network which will benefit landowners and users alike. I commend the regulations to the House.
§ Moved, That the draft regulations laid before the House on 18th January be approved [16th Report from the Joint Committee].—(Viscount Goschen.)
§ Baroness Hollis of Heigham
My Lords, we thank the Minister for that clear explanation of the order. I wish to emphasise, first, that we welcome the fact that the DoE is clarifying the position for local authorities in the light of the Richmond judgment. Until then, most authorities had charged for such orders but subsequently many felt unable to do so. Therefore we welcome the regulations in principle. As the Minister rightly said, they will benefit specific individuals. For the most part, we are not talking about the making of footpath orders for the benefit of ramblers or the public, although occasionally that might happen. We are talking about the making of orders which are for private gain, which is perfectly proper, and for private enjoyment. Therefore, it is right that local authorities should seek to recover their costs and they are right to charge.
My primary concern is that the maximum £400, plus the recovery of advertising costs, is too low. In cases where the order is uncontentious £400 may well cover the administrative costs. However, where an application may generate a public inquiry, where it is controversial and where it may involve lengthy consultation, a maximum charge of £400 nowhere begins to cover the costs, even though the gain may go only to one individual. After all, in highways legislation, for example, no maximum charge is levied for applications to magistrate courts under Section 116.
We should like to have seen a higher maximum limit. Local authorities need not be required to make that charge; it is merely that a higher maximum limit would ensure a more equable recovery of costs. If the costs are not recovered from the person enjoying the benefit they must be recovered from other charge-payers and taxpayers at a time when local authorities' budgets are capped.
I fear that, in consequence, in cases where a path order is controversial and where the other arguments are equally balanced, the officers of local authorities will be minded to refuse the application in order to avoid the costs of a contentious inquiry in respect of which the charge will not recover the outgoings of the local authority. We hope that the Minister will review the figure of £400, preferably annually. Furthermore, we hope that if the evidence suggests that that figure is reasonably low, as we believe it to be, the Minister will consider imposing a more realistic charge. Nonetheless, we welcome the order as a sensible first step.
§ Viscount Goschen
My Lords, I thank the noble Baroness for her general support for the principle of the regulations. The Government believe that the figure of £400 strikes the correct balance and that a higher figure cannot be justified. Applicants should have some idea of the maximum amount that they can reasonably expect to pay. Furthermore, there should be some incentive for local authorities to keep down their costs. However, we have indicated that we shall review the regulations within two years of their coming into force.
On Question, Motion agreed to.