§ (" .—(1) This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way—
- (a) was an offence under an enactment applying to the land crossed by the way, but
- (b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.
§ (2) Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of the premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way.
§ (3) An easement created in accordance with the regulations is subject to any enactment or rule of law which would apply to such an easement granted by the owner of the land.411
§ (4) The regulations may in particular—
- (a) require that, where an application is made after the relevant use of the way has ceased, it is to be made within a specified time,
- (b) specify grounds on which objections may be made and the procedure to apply to the making of objections,
- (c) require any matter to be referred to and determined by the Lands Tribunal, and make provision as to procedure and costs,
- (d) make provision as to the payment of any amount by the owner of the premises concerned to any person or into court and as to the time when any payment is to be made,
- (e) provide for the determination of any such amount,
- (f) make provision as to the date on which any easement is created,
- (g) specify any limitation to which the easement is subject,
- (h) provide for the easement to include any specified right incidental to the right of way,
- (i) make different provision for different circumstances.
(5) In this section—
enactment" includes an enactment in a local or private Act and a byelaw, regulation or other provision having effect under an enactment;
owner", in relation to any premises, means—
- (a) a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of the premises, whether in possession or in reversion, or
- (b) a tenant under a long lease, within the meaning of the Landlord and Tenant Act 1987;
prescribed" means prescribed by regulations;
regulations" means regulations made, as respects England, by the Secretary of State and, as respects Wales, by the National Assembly for Wales.
§ (6) Regulations under this section shall be made by statutory instrument, and a statutory instrument containing regulations made by the Secretary of State shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
§ The noble Lord said: My Lords, we gave a commitment to the House at Committee stage that we would bring forward our own proposals on the difficult and complex subject of vehicular access over common land. This amendment honours that commitment. The purpose of the amendment is to protect property owners who have been driving across common, or similar, land for many years and who are now faced with having to pay an excessive fee to the landowner for acquiring a legal right to do so. I should stress the word "and" because I am aware that many landowners have acted entirely responsibly on this issue. They have been prepared to grant easements to long-standing users for a nominal sum, perhaps to cover expenses. We do not want the existence of our scheme to mean that such landowners will not continue with that approach.
§ The amendment gives the Secretary of State the power to make regulations, which will contain the details of the scheme. We decided on this route because we do not consider it appropriate for the scheme that we envisage, which is, of necessity, quite complex, to be included in primary legislation. Before the Report stage, we issued a paper setting out our current view of how the scheme will work. The main elements to be included in the regulations are as follows: first, that the property owner, or his predecessors, must have been 412 using the access in such a way, and for such a time that, had the land not been common land (or other land on which driving is prohibited), a prescriptive right of access through long use would have been acquired.
§ Secondly, a limit on the amount of compensation that the property owner has to pay to the landowner will be included. In view of the comments made in Committee, and in the responses to the consultation paper, our current view is that this will be 1 per cent of the value of the property for residential properties built before 1st December 1930 and where use of the property is materially unchanged since that date, or 3 per cent for all other properties—or, alternatively, one-third of the increase in value of the property with a right of access, if that is lower.
§ We have listened carefully to the views expressed on the question of compensation, but remain unconvinced that it would be appropriate to grant any easements for nothing. I should perhaps stress at this stage that nothing in these proposals prevents property owners from claiming a prescriptive right through long use, if they can show that such a right had been acquired before it became an offence to drive across common land.
§ Thirdly, the regulations will include procedures designed to ensure that the scheme cannot be circumvented and that, where disputes arise, there an appropriate mechanism to ensure that these can be resolved. I hope that the House will feel able to accept the amendment. It will probably be better if I listen to the arguments behind the amendments that have been tabled to our amendment before responding to them. In the mean time, I beg to move.
Baroness Sharp of Guildford moved, as an amendment to Amendment No. 196, Amendment No. 196A:
Line 3, after ("any") insert ("land or").
§ The noble Baroness said: My Lords, in moving Amendment No. 196A I speak also to Amendments Nos. 196B, C, D, E, F, G and J which stand in my name. They all deal with the complex and vexed issue of vehicular rights of way over common land. My interest in this subject stems from the situation in Surrey. Surrey County Council felt obliged by the provisions of the Local Government Act 1972 to seek best value for money in those cases where they held the right to grant easements over common land. Although it set a limit of 4 per cent on the value of the property for these easements, in some cases this involved a payment of £10,000 or even £20,000. That is not difficult for some but difficult for others, particularly elderly people who have lived in fairly modest homes which have been caught up in the property boom and who have little in the way of income or savings except what is tied up in their homes.
§ Other public landlords—here I cite Guildford and Waverley borough councils in the county of Surrey— felt no such obligation and were in the meantime granting easements at the cost only of the legal fees involved. The result was a chaotic situation with property and commons owners both uncertain of 413 rights and obligations and with properties which did not have explicit easements or rights of way blighted by uncertainty. While such uncertainty persists it is impossible to obtain a mortgage which effectively blocks sales.
§ As the Minister indicated, we had some discussion on this matter at Second Reading and in Committee. We are extremely grateful to the Minister for bringing forward the amendment today. I record my thanks to the Minister and to his officials for the constructive way in which they put forward the original proposals and dealt with the consultation on them. They have taken into account many of the points made not only by myself and others in the Chamber but also by people outside who have participated actively in the consultation process and who are extremely grateful for the result.
§ Amendment No. 196 is the outcome of the process. The amendment and the regulations it proposes meet many of the issues raised. It lays down the right of an owner of such a property to be granted an easement and the conditions under which that easement may be granted, including specifying the maximum sum that may be charged. The regulations are, of course, crucial, but they are still subject to consultation and for that reason there remains some degree of flexibility.
§ The amendments to which my name is attached cover three distinct topics. Amendments Nos. 196A and 196C insert the word "land" before "premises". The reason for this is to ensure that the right to the grant of easements shall extend to agricultural land as well as dwelling houses and other properties. My noble friend Lord Phillips tells me that in legal parlance "premises" does indeed include land without buildings on it as well as land with buildings on it. However, I should be glad to have the reassurance from the Minister that this is the interpretation placed on these words in the amendment.
§ Amendments Nos. 196B, D and E all stand in my name and that of the noble Earl, Lord Selborne. I shall leave it to the noble Earl to speak to those amendments. I say merely that we on these Benches support him wholeheartedly on all three of the issues raised: the ceiling set for the value of easements shall be 2 per cent of the value of the property; the ability to defer such payment until the property is sold; and the need to have an explicit assurance that the regulations will be laid within a fairly short space of time so that the uncertainties which have dogged so many caught up in this issue will finally be terminated.
§ Amendments Nos. 196E, F and G also stand in my name. I wish to take a little time to explain the amendments. They relate not to property owners seeking to buy or sell easements for a lump sum, but to the situation where the owner of the commons is a charitable trust and where that trust has traditionally granted easement in return for an annual payment which is used to fund the maintenance of roads, paths and other general improvements to the amenities of the common land. There are a number of such trusts in existence; indeed, the National Trust is an example. 414 But whereas the status of the National Trust is explicitly recognised in paragraph 11 of the draft regulations that have been circulated, this is not the case with other charitable trusts.
§ One such trust is the Totteridge Manor Association, formed in 1955 as a registered charity with the objectives of managing and maintaining the rural amenities of some 52 acres of common land in Totteridge, a mixed residential and rural area in the north of London. At present the association charges an annual sum to those requiring rights of way for vehicles across its land. It fears that the Government's intention in the amendment—to allow property owners to buy such easements for a fixed capital sum— will have the perverse and unintended effect of preventing the association and other trusts of its kind being able to continue to levy annual payments and thus to fulfil their obligations to maintain rural amenities and manage the areas of common land. The association is worried that under the terms of the amendment it will be obliged to sell off easements for lump sums which will not only deprive it of its annual income but also make it difficult for it to fulfil the responsibilities of stewardship incumbent on it under the terms of the charitable trust.
§ Amendment No. 196F seeks to alleviate the situation by, first, allowing common land owners with charitable trust status to continue to exist without the objects of the charity being compromised or the amenity of the common land being jeopardised; secondly, ensuring that rights granted as a result of the changes are the same as if they had been acquired by prescription; and, thirdly, ensuring that such charitable trusts are not prevented from asking for reasonable periodical payments for the maintenance and upkeep of the common lands. Just as the position of the National Trust is recognised, we ask that the position of these other charitable trusts should also be recognised in the regulations. That is the purpose of the amendments. I beg to move.
§ 7.15 p.m.
§ The Earl of Selborne
My Lords, I speak to the amendments in the group which stand in my name. Like the noble Baroness, Lady Sharp, I am also grateful to the Minister for his amendment which addresses the issue which was identified and discussed at some length in Committee. The amendments that we propose to Amendment No. 196 constitute fine tuning. I accept that in the short time since the Committee stage much progress has been made. I echo the words of the noble Baroness, Lady Sharp, in saying how helpful the officials have been in discussing what I think everyone recognises is an astonishingly arcane area of law; that is, access over common land. We are going back to 1906 and trying to resolve complicated issues.
To demonstrate how complicated the matter is, Amendment No. 196AA, which stands in my name, is a gem of a complication. It seeks to address a problem which would arise under subsection (1)(b) of the Government's proposed new clause in Amendment No. 196 if a right of access arises from a presumption 415 of modern lost grant. I suspect that some noble Lords do not immediately recall what the presumption of modern lost grant is all about. I refer them to the 16th edition of Gale on easements which I have to hand. The provision is a legal title derived from the presumption of a right of way.
§ Lord Goodhart
My Lords, I am most grateful to the noble Earl for giving way. I believe that it is known as lost modern grant, not modern lost grant.
§ The Earl of Selborne
My Lords, all I can do is refer the noble Lord to Gale on easements which talks of a presumption of modern lost grant. I shall show him the document later, although I defer in all matters legal to the noble Lord, Lord Goodhart. Whatever it is called, let us assume that this situation arises where a right of way through virtue of long use has lapsed or no longer exists for some reason. That could happen if a lease were granted and it brought the property in question into the same management as the access land. Clearly there would then be no need for a right of way. The lease could end and the period where the access was required would not have achieved the prescriptive period of 20 years. I believe that subsection (1)(b) of the Government's amendment does not address the issue. I suggest that Amendment No. 196AA addresses it.
Amendments Nos. 196B, 196D and 196E deal with the possibility that the regulations, when finally drafted—I accept that much further consultation is needed—allow for the deferral of payments and limit the amount to be paid to 2 per cent of the value of the property. I share with the Minister the belief that a payment is perfectly appropriate. The access owner will face charges. The issue is the balance of the interests of the access owner and those of the property owner. I recognise that some individuals and their predecessors who have owned and lived in those houses since 1926 when the anomaly in the law arose will find it harsh, particularly if they are retired, to face a bill amounting to 3 per cent of the value of the property. That is the figure now suggested in the summary of the draft regulations.
Payment is a total windfall for the access owner. Were it not for the law which came into force on 1st January 1926 those prescriptive rights would long since have come into play. It is only because the access owner has either never known of his or her interests or has never bothered to enforce them that the situation arises today. After 50 years—it is longer in many cases—he is now entitled to present a bill of 3 per cent at today's prices.
Bearing that in mind and accepting from the Minister that payment is due to the access owner— however fortunate one may think the access owner to be—in seeking to get the right balance it is not unreasonable to hit on a figure of 2 per cent. That is the figure I commend to the House.
From these Benches we have from time to time argued that there are human rights which have to be taken into account. I recognise that that is precisely the reason that payments have to be made to the access 416 owner. I still think that 1 or 2 per cent is appropriate. The figure of 1 per cent is proposed in the draft regulations for those properties built prior to December 1930. I have no quarrel with that. I think that that is perfectly appropriate.
Amendment No. 196J refers to the need to ensure that the regulations are tabled within four months. It would be sensible to have in the Bill a date at which these regulations should come into effect. It would be most unfortunate if the period were protracted unnecessarily. However, I recognise that more discussion is needed. A period of four months might not be appropriate.
Amendment No. 196FA deals with properties whose construction was completed prior to 1st January 1906. The reason for the date of 1906 is that it is 20 years before the Law of Property Act 1925 came into force in January 1926. I am sure that the Minister will tell me that I need not worry about the properties relating to 1906 or earlier because they have prescriptive rights: after all, they were using their access for 20 years up to 1926; there is no problem; the government amendment does not address the issue because it does not need to address it. I am not sure that that is so. If one goes back to the maps of 1906 or thereabouts one finds evidence that there was a house; there must have been some route to it but it does not follow that it was always the same route. It probably was not when one considers how the tracks on common land have moved. After this long period no one can say from first-hand evidence what happened in and before 1906.
In seeking to establish the balance of interests between the access owner and the property owner, when talking about a house built in or before 1906 there can be no argument but that the house had access for vehicles—they may have been wagons—and a presumption that there was a prescriptive right. The access owner has to produce some evidence either of restricting access, of having made a licence or at least of having registered an interest. In other words, the presumption is moved to the access owner. If between 1906 and 1993 he never got round to doing that, a landowner cannot complain to the Court of Human Rights that he has had his rights greatly limited. Any other landowner would be only too delighted to know that by this astonishing aberration of the law he has an ability to charge 1 per cent, 2 per cent as I suggest or 3 per cent as the Government may suggest on these properties. But for 1906—surely not.
I hope that the Minister will look favourably on the amendments to Amendment No. 196 and recognise that they are tabled in the spirit of helpfulness, fine tuning the excellent Amendment No. 196.
§ The Lord Bishop of Winchester
My Lords, I associate myself with the amendments of the noble Baroness, Lady Sharp, and the noble Earl, Lord Selborne. I associate myself, too, with their thanks to the Minister for the work that he and his officials have undertaken in tabling the initial amendment. I am enormously impressed by the depth of the noble Earl's researches and his mastery of these matters. The issue 417 is of great seriousness to those immediately affected. My concern is for those in an area of Northamptonshire who have been in urgent touch with me as they have with the noble Earl.
It is a matter of very real alarm to the people whom the noble Baroness and noble Earl described. I share the noble Earl's sense that the figure owing to the owners of the common land must be set as low as reasonably possible. I note his remarks on that aspect. I support the amendments and all that has been said. I underline how urgent it is for the amendment to be in place and for it to be tuned as finely as possible.
§ Baroness Byford
My Lords, I express grateful thanks to the Minister and his team. The problem that has arisen is huge.
I shall not go over the ground that other noble Lords have covered so carefully. Perhaps I may ask one or two questions. I speak to Amendment No. 196H which is grouped with the other amendments. It is a simple amendment compared with the other amendments. It requires that there should be affirmative resolutions by both Houses on this issue.
Have the Government defined any amount of land which would be included? Is it the house and the immediate curtilage of the land or the garden? Alternatively, would it include acres of land? The provision refers to land. I was not sure how extensive they would be.
Secondly, in many cases the problem has arisen because individuals are—rightly—entitled to charge for access over land. A good deal of pressure has been put on parishes and local authorities to apply charges under the best value regime. What is the Minister's guidance to them?
Thirdly, I should like to ask about the regulations. Much of the outcome of our discussions will be built into regulations, which we shall not see before the Bill receives Royal Assent. The Minister has given us an indication of the Government's intentions, but I do not think that the final regulations will be written into the Bill before it passes. Any clarification that the Minister can give us would be very helpful.
Other noble Lords have mentioned the National Trust and the Totteridge Trust, which has written to me. Will an individual be able to become a trust to get round the provisions that my noble friends are trying to protect? That is a slightly obscure question, but it is relevant. The issue is not about existing charitable trusts, but what might happen in future. We ought to put our minds to that.
Again, I thank the Minister and I do not envy him the task of trying to pull this difficult problem together.
§ 7.30 p.m.
§ Lord Phillips of Sudbury
My Lords, I have added my name to Amendment No. 196H, which would ensure that regulations made under this complex new clause were promulgated under the affirmative resolution procedure, not the negative. I asked one 418 member of the Delegated Powers and Deregulation Committee whether it had considered the compensation provisions, which will be reserved to the regulations. He did not think that it had. It is fair to point out that the Committee was subjected to a heavy burden of work on the Bill, with many government amendments being tabled and many aspects relating to delegated legislation that had to be dealt with quickly. If ever any measure warranted the affirmative resolution procedure, those regulations will, in the absence of the compensation arrangements being specified in the Bill.
I support what the noble Earl, Lord Selborne, said so well when speaking to his amendments, some of which were tabled jointly with my noble friend Lady Sharp of Guildford. Amendment No. 196AA would insert into subsection (1)(b) words that would not penalise those who had not acquired a full prescriptive right before the due date. Do the words "to keep in existence" in subsection (1)(b) mean the same as not to have abandoned the easement? I have given notice of some of my questions, but this one only occurred to me during the debate. If those words simply mean that someone who has not abandoned an easement will get a statutory easement, the noble Earl's concern is dealt with. However, if they mean something more proactive, he has a powerful point. The inestimable Gale says that the normal rule for easements is that once they have been obtained by prescription, they can be lost by abandonment only if something radical happens. He says:The true rule would appear to be that mere non-use without more, however long, cannot amount to abandonment".There are any number of reasons why someone might not use the right of way for many years. For example, they might be ill, or even a recluse. The words "keep in existence" seem more proactive. I hope that the Minister will respond to that.
Finally, I shall speak in favour of Amendment No. 196E. It may be a little exaggerated to suggest that denying proper compensation to those lords of the manor who have suddenly woken up to this wheeze could have implications under the Human Rights Act 1998. I cannot be absolutely sure, but I do not believe that the issues were considered when the Law of Property Act 1925 or the Road Traffic Act 1930 were introduced containing provisions that, many years later, it would be realised had created, by a side wind, a potential for ill-gotten gains by certain unscrupulous lords of the manor.
§ Lord Phillips of Sudbury
I accept the noble Earl's point, although lords of the manor usually are the owners of the common, even if not always. In 1925 and 1930, there was no intention to deprive those in the process of acquiring such prescriptive rights of the rights of way that they had already long enjoyed. Most of those who have those rights will do extremely well 419 on the basis of the 2 per cent suggested by the noble Earl, Lord Selborne, and my noble friend Lady Sharp of Guildford.
§ Lord McIntosh of Haringey
My Lords, I am grateful to all those who have expressed their gratitude for Amendment No. 196. I do so not on behalf of Ministers, but on behalf of officials, lawyers and parliamentary counsel, because they have done the real work. I shall try to deal with each amendment in turn and answer the additional points that have been made.
Amendments Nos. 196A and 196C would insert the word "land". The noble Lord, Lord Phillips, is right that the Bill implies land and buildings, so no amendment is called for.
The noble Baroness, Lady Byford, asked how we defined the land area. It does not really matter very much. What is significant is access to the property. There is no limitation in the clause, but if we had to define it, I imagine that we would define it as the curtilage. That is the normal method.
§ Baroness Byford
My Lords, my concern was that the entry and perhaps 10, 15 or 25 acres from it might be included. Paying 3 per cent on that would come to a goodly sum. If the relevant area is only half an acre, it is another matter. Perhaps the Minister misunderstood me.
§ Lord McIntosh of Haringey
My Lords, I understand. The noble Baroness is talking about the land area from the point of view of evaluation, not permission. That will certainly have to be dealt with in the regulations. I imagine that it will be a particularly difficult issue.
Amendments Nos. 196B and 196E would reduce further the compensation payable by the property owner to the land owner. I have suggested that the regulations should provide for 1 per cent per property before 1930 and 3 per cent for later properties. Here, a figure of 2 per cent is suggested. That is lower than the figure which the noble Earl, Lord Selborne, suggested in his amendment in Committee. Our intention is to create a fair balance between the landowner and the property owner. We listened carefully to the points made in Committee and noted the responses to the consultation letter which we issued last month. The result was the tiered system of 3 per cent or 1 per cent, and we believe that that is an appropriate balance.
There is nothing magical about those figures. They are round figures. We are simply responding to the consultation. I do not feel inclined either to put a figure into the Bill or to go against the consultation which we have undertaken.
With regard to Amendment No. 196D, I appreciate the wish to ensure that no property owner is faced with having to pay a large lump sum immediately. In response to the concerns which were expressed, we have already reduced the percentage compensation payments and propose that the regulations will provide for payment by instalments. To that extent, we 420 have dealt with the problem that the amendment would address. However, it would appear to be unfair to the owner of the common land to provide for a long delay before any payment was made, which is what the amendment seeks to do. Therefore, I hope that Amendment No. 196D will not be pressed.
Amendments Nos. 196F and 196G appear to have been drafted with the intention of providing safeguards to the owner of the common land and the beneficiaries of charities. I sympathise with the objectives set out in the amendments with regard to charities. However, we believe that regulations would provide a better means by which to safeguard the position. I can assure the noble Baroness, Lady Sharp, that when drafting the regulations we shall consider ways in which we can do that.
I was asked whether individuals can turn themselves into a trust in order to receive special treatment. I am not convinced that the provision allows special treatment for charities, and I am not convinced that that would be worth while. However, if I am wrong, I shall certainly write to the noble Baroness, Lady Byford.
I continue with Amendment No. 196F, which is a substantive amendment. With regard to paragraph (b), I can assure the noble Baroness, Lady Sharp, that it is intended that the statutory rights created under the scheme will be the same as those that would have arisen if the right had been acquired by prescription. I believe that that is the assurance she required.
With regard to paragraph (c), there is nothing in the Bill, nor will there be anything in the regulations, that. will prevent the landowner using any compensation for the upkeep of the common. However, it is not our intention to provide for a lump sum compensation payment followed by an annual fee, which would or would not be put towards upkeep as the case may be.
In relation to paragraph (d), I am not convinced that it would be appropriate to give the common landowner the ability to impose conditions on the statutory right over and above those imposed in the regulations. The rights that we intend to give to the access user are those that he would have enjoyed by prescription. I hope that I have covered the points that were raised.
In relation to Amendment No. 196H, which seeks to insert the affirmative resolution procedure, I do not believe that the Delegated Powers and Deregulation Committee has put forward an explicit view that the negative resolution procedure is incorrect. If the committee were to say that the affirmative resolution procedure should be used, we would do so. However, I do not believe that the amendment is appropriate until the committee comes to such a conclusion.
With regard to Amendment No. 196J, I can give the noble Earl, Lord Selborne, the assurance that we fully appreciate the need to act quickly. We intend to bring forward the regulations as soon as we can. However, it is obvious from this debate that the issues are not straightforward, and I do not wish to make any commitments.
421 Amendment No. 196AA concerns what the noble Earl calls "modern lost grant" and what the noble Lord, Lord Goodhart, calls "lost modern grant". I prefer to call it "modern grant lost". I consider that to be much more elegiac and poetical. It would go with "paradise lost", and would not make any difference to the sense.
As the noble Earl, Lord Selborne, will have become aware in the course of his research, the law of prescription is very complex. He is right to point out that our amendment will not cover all the circumstances where prescriptive easements would have been obtained if driving had not been made a criminal offence. That will be the case in many instances, but neither would certain cases be covered by his amendment. Many people have paid for easements which otherwise they could have obtained through prescription.
In putting forward this amendment, it was never our intention to do anything more than deal with a specific, acute problem. The problem which the Government seek to resolve concerns cases where a property owner has been driving to his home across common land unhindered and continuously for many years but is now faced with a large payment in obtaining the legal right to do so. That was the problem with which we were faced and which we have stuck to. If we widen the scope of the amendment, we run the risk of opening up many more access ways across common land that have not been used for many years. Behind that must be our desire to stop people driving across common land unless they have to. The amendments concern occasions when people must do SO.
Amendment No. 196FA deals with the desire of the noble Earl, Lord Selborne, to ensure that the government scheme takes special account of properties where vehicular access may have been in existence for many years. We accept that there is a case for a reduced compensation payment, and that is what we propose to put into the regulations. It represents a great deal less than the 9 per cent which some owners can currently expect to be asked to pay.
It is now suggested that we should go even further and provide free easements for houses constructed before 1st January 1906 because such properties had been in existence 20 years before it became an offence to drive on common land and therefore a prescriptive right must have been acquired. I am not sure about that. I do not believe that many people living in properties next to common land in 1906 would have had cars. I believe that they would have used hand carts.
§ Lord McIntosh of Haringey
My Lords, very few of them would have had motor vehicles. I believe that if they were removing their chattels, like the Mayor of Casterbridge, they would have done so in a hand cart.
422 I do not believe it is at all certain that every house had a vehicular access which was used in a manner that would have acquired a prescriptive right before it became an offence to drive on common land. In 1926 it became necessary to prohibit driving on common land because motor vehicle ownership had spread sufficiently to make it a problem. Prescriptive rights may be claimed for a wide variety of uses and on various grounds. However, we are not aware of any other circumstances where evidence does not have to be produced to support claims for those rights. We accept that the problem of vehicular access over common land needs to be addressed. Our intention in the amendment is to create a fair balance between the aspirations of property owners and the rights of landowners.
Perhaps I may turn briefly to the point made by the noble Lord, Lord Phillips.
§ The Lord Bishop of Winchester
My Lords, I thank the noble Lord for giving way. I wonder whether, on reflection, he believes that the noble Earl, Lord Selborne, made some sense in his reference to wagons. Indeed, all sorts of people had vehicles with four wheels, not two, before the motor car came into existence. Such vehicles were pulled by horses. That type of argument has been put forward at other points during the passage of the Bill. I believe that the noble Lord was somewhat cavalier in his dismissal of the noble Earl's use of the words "wagon", "cart", "carriage" or whatever.
§ Lord McIntosh of Haringey
My Lords, I was not dismissing it at all. I was attempting to reinforce it. I believe that during the period of 20 years between 1906 and 1926 a great deal of wheeled traffic would have been non-motorised. I do not believe that, even now, anyone will worry if a wagon or a hand cart is driven across common land, even if not for access to premises. That is not the problem. The problem is caused by people driving motor vehicles—mechanically-propelled vehicles—across common land. That is the type of access right which I do not believe was always in existence between 1906 and 1926.
§ Lord Phillips of Sudbury
My Lords, I do not know whether I misunderstand the noble Lord. The law is very clear that there is a right of way for vehicular access. It does not matter what type of vehicle is in question, whether horse drawn or motor driven. I believe that there may be some misunderstanding about that.
§ Lord McIntosh of Haringey
My Lords, I will not challenge the noble Lord on the law. Behind all this is our desire to stop motor vehicles driving on common land except where they have to. The noble Lord, Lord Phillips, asked whether "to keep in existence" is the same as "abandoned". Statutory easements created under our scheme will follow the normal laws on prescription. They will not affect the law on abandonment.
423 As regards whether the 1925 and 1930 Acts did not intend to cause this problem, I do not think I can add to what I said about the tiered figure, which was the result of consultation. Concerning the other points raised with two officials by the noble Lord, I can confirm almost everything that he said. I do not believe that I need weary the House with that unless he wants me to.
§ Lord Phillips of Sudbury
My Lords, I have not made the points yet. I thought it appropropriate to raise the points made with the officials at the end of the debate on the amendments and when we consider their resolution.
§ Lord McIntosh of Haringey
My Lords, I shall try to cut that out because the noble Lord has already spoken on the amendment. When it is disposed of, I hope that we can return to Amendment No. 196 formally. So that none of us has an extra bite of the cherry, I shall deal with the points which the noble Lord, Lord Phillips, raised with my officials.
I am happy to confirm his understanding on almost all points. The amendment will not confer a right of easement if the criteria set out in the amendment and regulations are not met. Therefore, it will not prevent owners of commons stopping unauthorised uses that do not meet with the requirements set out in the amendment and regulations. It will not interfere with the present law in relation to acquiesence, and/or estoppel. The intention of the amendment is to grant an easement in respect of the use enjoyed at the time of application.
Should the use change, whether in the number of properties served or the route or nature of the surface, then the person who has the benefit of the easement could be regarded as acting unlawfully as they have acted beyond the terms and the owner of the common would be able to take appropriate action. As regards parking, the statutory easement will grant only those rights which would have been obtained by prescription so that it will permit parking only if that is already taking place.
I return to the remark of the noble Earl, Lord Selborne, that these amendments are fine tuning of our original amendment. I am grateful for all of them. They have led to a constructive debate, but I hope that it will be possible to have them withdrawn and proceed to approval of the original amendment.
§ Baroness Sharp of Guildford
My Lords, I am grateful to the Minister for his very thoughtful reply to the series of amendments which we put to him. I believe he is right; we have had a very constructive debate. As the noble Lord pointed out, the main problem we have faced is those people who thought they had right of way to drive to their own property only to discover that they were committing a crime in the process. The problem has created a very acute issue for some people. It is important that it should be dealt with as quickly as possible.
424 I am sorry that at this point we cannot be clear that regulations are going to be subject to the affirmative resolution procedure. But I hope that when this matter comes before the Delegated Powers and Deregulation Committee it will enable us to debate the regulations in this House.
§ Lord McIntosh of Haringey
My Lords, if the committee says that the measure should be considered by the affirmative resolution procedure, we shall provide for it. I believe that the noble Baroness will agree that it would be right for us to provide for it only on the first occasion and that subsequent amendments could be by the negative resolution procedure.
§ Baroness Sharp of Guildford
My Lords, I am grateful to the Minister. There is so much that hangs on these regulations that it would be good if there were the opportunity for debate in the House. With that reservation, I withdraw my amendment.
Amendment No. 196A, as an amendment to Amendment No. 196, by leave, withdrawn.
[Amendments Nos. 196AA to 196J, as amendments to Amendment No. 196, not moved.]
On Question, Amendment No. 196 agreed to.
§ Clause 65 [Erection or improvement of stiles etc.]:
Lord McIntosh of Haringey moved Amendment No. 196K
Page 43, line 34, at end insert—
("() In subsection (5) of that section, at the end there is inserted "or for the breeding or keeping of horses."").
§ On Question, amendment agreed to.
Lord Whitty moved Amendment No. 197:
Page 45, line 26, at end insert—
("(4) In section 344 of the 1980 Act (application to Isles of Scilly) in subsection (2)(a) after "147," there is inserted "147ZA,".").
§ The noble Lord said: My Lords, this is a technical amendment again dealing with the situation in the Isles of Scilly. I beg to move.
§ On Question, amendment agreed to.
Lord Whitty moved Amendment No. 198:
After Clause 65, insert the following new clause—