HL Deb 16 November 2000 vol 619 cc376-86

31A.—(1) The appropriate council shall keep, in such manner as may be prescribed, a register containing such information as may be prescribed with respect to maps and statements deposited and declarations lodged with that council under section 31(6) above.

(2) Regulations may make provision for the register to be kept in two or more parts, each part containing such information as may be prescribed with respect to such maps, statements and declarations.

(3) Regulations may make provision as to circumstances in which an entry relating to a map, statement or declaration, or anything relating to it, is to be removed from the register or from any part of it.

(4) Every register kept under this section shall be available for inspection free of charge at all reasonable hours.

(5) In this section— appropriate council" has the same meaning as in section 31(6) above; prescribed" means prescribed by regulations; regulations" means regulations made by the Secretary of State."").

The noble Lord said: My Lords, Amendment No. 168 arises from a commitment that we gave in Committee to consider an amendment tabled by the noble Baroness, Lady Byford. That amendment was aimed at streamlining the processes under Section 31 of the Highways Act 1980 whereby a landowner may, through the deposit of various documents, rebut the presumption that he intended to dedicate a way as a highway as a result of the public having used the way for 20 years without interruption.

An owner may deposit a map and a statement showing all the ways on his land which he admits are dedicated as highways. Declarations are required every six years thereafter to the effect that no additional ways have been dedicated over the land. This amendment would increase the period for making declarations from six to 10 years. It would also require local authorities to keep a register of maps, statements and declarations and make them available free of charge for inspection by the public.

The requirement in relation to registers is broadly in line with the amendment proposed by the noble Baroness. However, it differs in some respects. The noble Baroness's amendment would have required that a combined map and statement be deposited when land changed hands and would have removed the requirement for subsequent declarations to be made at regular intervals.

We believe that those changes would have undermined the notion of deemed dedication. The procedures set out in Section 31(6) are designed to protect a landowner's interests while, at the same time, taking account of the public interest served by the concept of deemed dedication. That balance would be altered significantly if a single deposit of a map and statement by a landowner were to remain valid until the land changed hands; for example, in our view, it would soon become standard conveyancing practice for maps and statements to be deposited on the transfer of the land. It is also clear that land may be held for many years beyond a person's natural life by a company or trust and therefore not change hands.

There are also other ways in which a landowner can make his intention clear. He can, for example, put up a notice to that effect, he can lock a gate or he can close off a way for one day a year. A landowner is not obliged to follow the procedures set out in Section 31(6) of the 1980 Act.

When we discussed this matter in Committee, we made it clear that we would be prepared to agree to a reduction in bureaucracy. I believe that the amendment achieves that, but not to an extent which would undermine the concept of deemed dedication. We believe that, by extending the period for making declarations to 10 years, any burden on landowners would be significantly reduced while ensuring that Section 31 continues to do what it was designed to do. I beg to move.

Baroness Carnegy of Lour

My Lords, the noble Lord said that the Government are keen to reduce bureaucracy. Why should not the statement and the statutory declaration be on the same document? Is it necessary to have all those documents?

Lord Whitty

My Lords, at first I also wondered about that. However, it would probably be more rather than less cumbersome to require everything to be in one document. The section requires only an initial deposit of a map showing the ways which the landowner admits are rights of way over his land, and a statement relating to the map. After that, he has only to make periodic declarations that no additional ways have been dedicated. That is simpler than requiring the map and the statement to be deposited every six or, if this amendment is accepted, every 10 years. In other words, rather than resubmit the whole statement, the landowner would show only the changes. We consider that to be less onerous than the requirement for a combination of map and statement.

Baroness Byford

My Lords, I thank the Minister for accepting the arguments that we put forward in Committee. He referred to additional parts of our original amendment which the Government obviously considered but decided not to include. I am grateful and support the amendment.

On Question, amendment agreed to.

[Amendments Nos. 169 to 171 not moved.]

Baroness Farrington of Ribbleton moved Amendments Nos. 172 to 174: Page 76, line 38, at end insert— ("2A. In section 118 of the 1980 Act (stopping up of footpaths and bridleways) after subsection (6) there is inserted— (6A) The considerations to which—

  1. (a) the Secretary of State is to have regard in determining whether or not to confirm a public path extinguishment order, and
  2. (b) a council is to have regard in determining whether or not to confirm such an order as an unopposed order,
include any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would extinguish a public right of way."").

Page 80, line 20, at end insert—

("(5) After subsection (6) there is inserted—

"(6A) The considerations to which—

  1. (a) the Secretary of State is to have regard in determining whether or not to confirm a public path diversion order, and
  2. (b) a council is to have regard in determining whether or not to confirm such an order as an unopposed order,
include any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would create or extinguish a public right of way."").

Page 83, line 20, leave out ("as") and insert ("for the purpose").

On Question, amendments agreed to.

5.15 p.m.

Baroness Farrington of Ribbleton moved Amendment No. 175: Page 86, line 26, leave out ("subject to subsection (4) below,").

The noble Baroness said: My Lords, in moving Amendment No. 175, I wish to speak also to Amendment No. 176. Amendment No. 175 corrects a minor error in the provisions relating to SSSI diversion orders which was drawn to our attention in Committee by an amendment tabled by the noble Lord, Lord Glentoran. The noble Lord rightly pointed out that the condition attached to the exercise of the order power in new Section 119D(3) of the Highways Act contains a typographical error. On further reflection, we also agree with him that it is otiose. Accordingly, Amendment No. 175 removes it and provides for drafting which is consistent with new Section 119B of the Highways Act, also found in Schedule 6 to the Bill.

Amendment No. 176 arises from our commitment to consider a further amendment tabled by the noble Lord, Lord Glentoran, relating to the requirements in new Section 119E for English Nature and the Countryside Council for Wales to give advance notice of their intention to apply for an SSSI diversion order. It was always our intention to include land managers in the regulations prescribing which persons should be notified. However, we agree that that should be made clear on the face of the Bill.

Amendment No. 176 would require the conservation bodies to give any owner, lessee or occupier of land over which the right of ways runs, or over which the diverted line would run, 14 days' notice of an application for an order. That would be in addition to the provisions in Schedule 6 to the Highways Act which the Bill applies to SSSI diversions and which require a highway authority making an order to notify owners, occupiers, lessees and others of the opportunity to make representations or objections. I beg to move.

Lord Glentoran

My Lords, I thank the noble Baroness, Lady Farrington, for these amendments. I am delighted that the Government have moved in that direction.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendment No. 176: Page 88, line 25, leave out ("such") and insert— ("any owner, lessee or occupier of land over which the proposed order would create or extinguish a public right of way; (aa) to such other").

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 177: Page 97, line 24, leave out ("the footpath or bridleway") and insert ("—

  1. (a) so much of the footpath or bridleway as passes over that land, and
  2. (b) so far as is requisite for effecting that diversion, so much of the footpath or bridleway as passes over other land occupied by him.").

The noble Lord said: My Lords, in moving Amendment No. 177, I wish to speak also to Amendments Nos. 178, 179 and 181.

Amendment No. 177 is designed to bring new Sect ion 135A into line with a provision in Section 135 of the Highways Act which prevents a temporary diversion made under that section affecting the line of a footpath or bridleway on land not occupied by the person who benefits from the diversion. The aim is to prevent an occupier of other land being land-locked by such a diversion. Under Section 135, the temporary diversions which may be authorised in relation to engineering operations are authorised by an order made by a local authority. The new provisions do not require an order to be made and we believe that such a restriction is all the more appropriate.

Amendment No. 178, which is more substantive, arises from our commitment to consider an amendment tabled in Committee by the noble Lord, Lord Glentoran. That amendment would have extended the maximum period for which a temporary diversion under new Section 135A may be made from five days to 28 days a year. We accept that five days may not provide the degree of flexibility which new Section 135A aims to give to land managers. On the other hand, we believe that 28 days would be too long. After all, an occupier is not required to obtain prior approval before diverting a footpath or bridleway under those provisions. Therefore, Amendment No. 178 seeks to extend the period to 14 days. We believe that to be appropriate for a provision of this nature.

Amendment No. 179 would ensure that it was not possible to divert a footpath or a bridleway on to another highway which was inappropriate or unsafe for walkers or horseriders to use. Amendment No. 181 to Section 344 of the Highways Act 1980 would prevent new Sections 135A and 135B taking effect in the Isles of Scilly except by order of the Secretary of State after consultation with the Council of the Isles. That would treat the Scilly Isles in the same way as related provisions in the Highways Act including Section 135. I beg to move.

Lord Glentoran

My Lords, once again I welcome these amendments and thank the noble Lord.

On Question, amendment agreed to.

Lord Whitty moved Amendments Nos. 178 to 181: Page 97, line 33, leave out ("five") and insert ("fourteen"). Page 97, line 48, at end insert—

  1. ("b) to divert a footpath onto a highway other than a footpath or bridleway, or
  2. (c) to divert a bridleway onto a highway other than a bridleway.").

Page 99, line 44, leave out ("road hump") and insert ("road-ferry").

Page 100, line 10, at end insert—

("17A. In section 344 of the 1980 Act (application to Isles of Scilly) in subsection (2)(a) after "135," there is inserted "135A, 135B,".").

On Question, amendments agreed to.

Clause 57 [Rights of way improvement plans]:

Lord Whitty moved Amendment No. 181A: Page 35, line 39, after ("for") insert ("exercise and other forms of").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 185 and 186 in my name and to Amendments Nos. 183 and 187.

The government amendments arise from a lengthy and very useful debate on amendments tabled by the noble Lord, Lord Northbourne, during Committee stage. A major theme of that debate was the important contribution which regular exercise can make to people's health. It was clear that there was widespread support for these measures and for a reference to exercise as one of the matters which local highways authorities would be required to assess when discussing their rights of way improvement plans.

We have reflected on the views expressed and agree that there is a case for amending the clause so that we give added emphasis to exercise as a form of open-air recreation. Amendment No. 181A requires local authorities to include in their rights of way improvement plans an assessment of the opportunities to provide for exercise. It has been tabled in order to clarify the intention that, among the opportunities for open-air recreation, exercise should be given additional emphasis. As that contributes to the health of the nation, I hope that it meets the main point behind the noble Lord's earlier amendment.

Amendments Nos. 185 and 186 also arise in part from an amendment tabled by the noble Lord, Lord Northbourne. They bring cycle tracks within the ambit of rights of way improvement plans. These do not currently fall within the definition. Cycle tracks can make an important contribution to the recreational value of local rights of way and we accept that generally they should be covered by rights of way improvement plans. Amendment No. 185 would exclude cycle tracks which form part of, or run alongside, made-up carriageways. That is consistent with the Bill's approach to footpaths which are defined by definitions in the Wildlife and Countryside Act 1981. I beg to move.

Lord Northbourne

My Lords, I very much welcome the fact that the Government have decided to respond to the fairly strongly expressed feeling on all sides in Committee that there should be reference in the Bill to the importance of adequate opportunities for exercise as one of the matters which local authorities should consider when preparing their rights of way plans. I also welcome the fact that the Government have made clear that cycle tracks constitute one kind of the rights of way which have to be considered in those plans. Both changes reflect the strongly held views of the House that there is a need and a demand from the public to consider the rights of way network in the context of the needs of the 21st century. I support Amendments Nos. 181A and 185 to 187. I do not intend to move Amendment No. 183.

Baroness Miller of Chilthorne Domer

My Lords, we, too, felt very strongly at Committee stage that cycle tracks should be included because without them there would be no possiblility of looking at a reasonable multi-use approach. We welcome the fact that the Government have brought forward their own amendment.

I wonder whether the amendment concerning cycle tracks is more narrowly drawn than our Amendment No. 187. Would fewer cycle tracks be included in the government amendment? I suspect that that might be the case. Nevertheless, we are very happy that the Government have brought forward their amendment on the subject.

Baroness Byford

My Lords, I support these amendments. We had a very full discussion which I shall not go over again. Can the Minister tell me why the Government have resiled from Amendment No. 368AA of the noble Lord, Lord Northbourne, and myself, which gave greater flexibility? Perhaps there is good reason for that. I shall be grateful for an explanation.

Lord Whitty

My Lords, I am not sure whether the noble Baroness is referring to public health in the noble Lord's original amendment. That is clearly a wider concept than exercise. It is probably too wide to expect a local highways authority to assess all the implications for public health in the context of looking at its rights of way plan. We felt it better to focus on exercise as a form of open-air recreation rather than deal with the wider issue of public health which includes many more issues for consideration.

As regards Amendment No. 187, I believe that the noble Baroness's amendment would include more cycle tracks. We would wish to exclude those that run alongside a made-up carriageway under certain conditions. We would wish specifically to exclude them as we are excluding footpaths which use the made-up carriageway. That is the explanation as to why we believe that our amendment is better.

I have found another piece of information regarding the noble Baroness's earlier amendment, which relates to the existence of an extinguishment order. It may be that the existence of such an agreement is something which the confirming authority would be sensible to consider as the Act requires. There would be a range of such factors which it would need to take into account, depending on the circumstances. If we picked out the existence of an extinguishment order specfically, there could arise the suggestion that other considerations should be taken into account. We believe that the authority would have to act reasonably. Were such an order in place, it would need to be taken into account along with other possible legal qualifications of the position. If we spell out one aspect and not others, we could find ourselves with a problem. That is why we did not think it right to include that part of the noble Baroness's amendment.

On Question, amendment agreed to.

[Amendment No. 182 had been withdrawn from the Marshalled List.]

[Amendment No.183 not moved.]

Baroness Miller of Chilthorne Domer moved Amendment No. 184: Page 35, line 40, at end insert— ("() the extent to which the network may be organised to provide walkers, horse riders and cyclists with the maximum opportunity to pursue their recreation off highways used by mechanically propelled vehicles,").

The noble Baroness said: My Lords, we believe that, as drafted, the Bill tends to leave a gap in the matters that need to be examined as regards the way in which the rights of way improvement plan is published. We have just debated the fact that the Government have seen fit to bring exercise on to the face of the Bill. But taking it along a footpath or cycle track at the edge of a carriageway would not fulfil the aspirations which were mentioned in Committee; namely, the opportunity to pursue walking, riding and cycling away from the noise and fumes of the motor car. That is why, even at this late stage, I have retabled an amendment which places considerable emphasis on the off-road opportunities which should be offered to people. I believe that we may debate that further on Amendment No. 188 in the name of the noble Lord, Lord Northbourne. I regard my amendment as paving the way for the sort of debate which may arise on that amendment. I beg to move.

5.30 p.m.

Baroness Mallalieu

My Lords, I support the amendment. It would be very sad if we were to leave Clause 57 without it focusing in any way on vulnerable traffic such as horse riders who are increasingly involved in accidents on the highway. At present, there is a missed opportunity in the Bill. An amendment of this sort would focus local highway authorities' attention on the need to provide for what is a growing number of people who will, in the future, be more and more vulnerable. Even at this stage, I hope that the Minister will feel it right to include something of that sort in the purposes which the local highway authorities must consider.

Lord Northbourne

My Lords, I support the noble Baroness's amendment. I am not entirely sure that this issue will arise on my next amendment. I believe that the provisions of this amendment are very important.

Lord Greaves

My Lords, briefly, I add an additional point to those matters raised by my noble friend Lady Miller of Chilthorne Domer, which I fully support.

This amendment includes the words "maximum opportunity". There is still considerable doubt among people using rights of way and organisations representing walkers and horse riders about the purposes of rights of way improvement plans and what the word "improvement" really means. There is real concern that in some places highways authorities may take the opportunity of "rationalising' and we end up with a network which is thought to provide sufficient opportunities in relation to what people nowadays want but, nevertheless, will result in quite a reduction in the number of paths and bridleways available. The words "maximum opportunity" written into the Bill would be a useful counter to that possible tendency.

Baroness Byford

My Lords, I add my support for the amendment. I suspect that the Government may say that it is not technically correct, but I hope not. The noble Baroness, Lady Mallalieu, raised a very important point in relation to horse riders who use the roads. It applies too in relation to cyclists but I am thinking of horse riders in particular. Horse riding is an increasingly popular sport these days and much of the riding is done by very young people in comparatively difficult circumstances on some of our roads. I speak as a parent when I say that I am sure we should all wish to ensure that those youngsters are off the road as much as possible.

Lord McIntosh of Haringey

My Lords, Amendment No. 184 would require local highway authorities, when preparing rights of way improvement plans, to assess the extent to which their local rights of way network could be organised to maximise the recreational opportunities for walkers, horse riders and cyclists away from routes used by mechanically propelled vehicles. Those are admirable objectives.

Rights of way networks are made up mainly of routes— principally, footpaths and bridleways—not normally used by motor vehicles. The assessments which local highway authorities will be required to undertake in preparing their improvement plans are meant to take account of the extent to which local rights of way meet the present and likely future needs of the public as a whole. They are also meant to assess the extent to which rights of way provide opportunities for open-air recreation.

I certainly agree with all noble Lords who have spoken that there are good reasons why walkers, horse riders, cyclists and drivers of horse-drawn vehicles would generally prefer not to share rights of way with motorised vehicles. Indeed, that has been the theme throughout virtually all our debates today. Issues of safety, as well as noise and other factors, arise. Having said that, not all walkers like sharing with cyclists or horse riders. There can be conflicts between these as well as between other groups. However, the important point is that we believe that the objectives of the noble Baroness, Lady Miller, can be met without amending the Bill.

In practice, most users are likely to be walkers, cyclists, horse riders and drivers of horse-drawn vehicles. I said on an earlier amendment that byways open to all traffic are only 2 per cent of all rights of way. Roads used as public paths, which are the foundation for the new category of restricted byways, make up a further 3 per cent. Footways and bridleways make up 95 per cent of the rights of way in England and Wales.

One of the key questions for local highway authorities to consider in preparing the plans will be the case for creating new rights of way. That is the emphasis, I am sure, that there will be in the plans and that is what the noble Lord, Lord Greaves, wants. He is quite right. Sections 25 and 26 of the Highways Act 1980 provide express powers to create footpaths and bridleways by agreement or order. It would be possible to extend those powers to restricted byways, again excluding motorised vehicles, by the regulation-making power in Clause 49. We shall be looking sympathetically at that when we come to make the regulations. However, there is no similar specific power to create byways open to all traffic which can be used by motorised vehicles and I want to make it clear that we do not intend to introduce one.

So, in practice, the patterns of use and the powers available to local authorities to create new rights of way already favour non-motorised users. There will be scope to cover the issues raised by the noble Baroness, Lady Miller, in the statutory guidance on improvement plans to be issued by the Secretary of State or the National Assembly for Wales.

We are keen to avoid adding to the list of matters on the face of the Bill which local highway authorities are required to consider because of the risk of distorting the assessment process in favour of one or more particular interests. I hope that I have shown that all the objectives which the noble Baroness has in proposing the amendment exist already and that it would be undesirable to encourage further additions to Clause 57.

Baroness Miller of Chilthorne Domer

My Lords, I am afraid that I must disappoint the Minister. I do not feel that he has demonstrated that because there is a difference between my amendment and what is on the face of the Bill. Clause 57(2)(a) refers to, the extent to which local rights of way meet the present and likely future needs of the public", but it does not specify that that should be off-road.

Nor does the clause strengthen the local authority's arm when it wishes to make, perhaps with a local landowner, an unpopular move in trying to link, as in my county, two bridleway networks which are separated by about 100 yards of busy main roads. I believe that my amendment would strengthen local authorities in justifying making maximum off-road opportunity. I hope that the Government may think again on this matter between now and Third Reading because I shall return to it at that stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendments Nos. 185 and 186: Page 36, line 11, at end insert— (""cycle track"—

  1. (a) means a way over which the public have the following, but no other, rights of way, that is to say, a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988) with or without a right of way on foot; but
  2. (b) does not include a way in or by the side of a highway consisting of or comprising a made-up carriageway (within the meaning of the 1980 Act);").

Page 36, line 17, after ("footpaths,") insert ("cycle tracks,").

On Question, amendments agreed to.

[Amendment No. 187 not moved.]

Lord Northbourne moved Amendment No. 188: After Clause 57, insert the following new clause—