§ (" .—(1) Where an owner or a person with an interest in land proves that he has suffered a diminution in the value of his land or interest therein due to the right conferred by section 2(1), he shall be entitled to claim compensation in the same manner and 1009 on the same basis as provided under sections 70 to 72 of the National Parks and Access to the Countryside Act 1949 ("the 1949 Act") in relation to land over which an access order has been made under Part V of that Act.
§ (2) Regulations may be made as under section 70 of the 1949 Act.").
§ The noble Lord said: My Lords, I move this amendment standing in the name of noble friend Lord Brittan of Spennithorne and myself. Those of your Lordships who have attended the various stages of this Bill will be aware that this amendment has been tabled in substance on previous occasions by my noble friend. For reasons entirely beyond his control he is unable to be with your Lordships tonight. I have no doubt that were he able to be here the cogency of his arguments and the force of his oratory would compel immediate acceptance of the amendment by the Government. I suspect that I might have a more uphill struggle.
§ My starting point is the often-repeated statement made by the Minister that this amendment is unnecessary because there will be no diminution in value of any estate as a result of the Act. As many of your Lordships are aware, to that there is a simple reply. If indeed there will be no diminution in value, why not include the provision because it will never have to be activated? Noble Lords will have heard the Government's reaction on a number of occasions to that proposition and will know that, despite the Government's belief that there will be no diminution in value, nevertheless they are not prepare to include the provision in the Bill.
§ I suspect that the reason is very straightforward. It is very hard to conceive that if, for the first time in history, a very large number of people have access to land which was hitherto used exclusively by the owner, there would not be damage and diminution in value. There are precedents in English law for providing compensation in such circumstances. For example, one is contained in Sections 70 to 72 of the National Parks and Access to Countryside Act 1949. When an access order is made, if there is a diminution in value the landowner is entitled to compensation. That right exists despite the fact that there are other provisions in the Act to deal with other kinds of damage. So it is a distinct and self-standing provision.
§ I have read what the Minister said in response to the fact that this provision exists. The noble Lord said that that is very different because under the 1949 Act there is clear discrimination between landlords whose land is within a national park and landlords whose land falls outside. The distinction between the situation in the 1949 Act and that shown in the Bill is a distinction without a difference. We know that moorland, mountain areas and downland will all be mapped and classified. We know that some landowners will fall within the classification and others will fall outside. Therefore, I wholly fail to understand the distinction that the Minister makes between the situation in Sections 70 to 72 of the 1949 Act and the Bill which the noble Lord has placed before your Lordships today.
§ There is a second precedent and that is in the Highways Act 1980 as regards those rights of way created for the first time. If I understand the Minister's 1010 approach correctly, here it is slightly different. He says that that Act affects everybody's land and therefore nobody has rights. That seems to be a truly novel proposition. Just because the rights of a large number of people are affected, it does not mean that they do not have the right to compensation. The fact that they are all in the same boat should make no difference at all to their legal position.
§ What is the difference between a right of way which gives the user a clear right of passage and a right to go onto land, hitherto not allowed, which gives the person enjoying that right the right to recreation? Once again that is a distinction without the difference. As noble Lords are aware, a right of way is a clear encumbrance on property. If that is so, and if there is no difference in law between a right of way and a right of access, how can the Minister possibly argue that compensation under the European Convention on Human Rights is not payable?
§ Your Lordships will be aware that under Article 1, Protocol 1 there are two categories which give rise to compensation. The first is where there is a clear expropriation of the right and the second is where the government control someone's property, but do not take it away. By now noble Lords will he familiar with the fact that on 18th April this year the Minister in the other place conceded that the Bill will infringe property rights. If the Minister is to be faithful to that concession, we have here a clear case of expropriation. It is crystal clear from the jurisprudence in the European Court of Human Rights that compensation almost invariably follows.
§ My noble friend Lord Brittan was more generous than I have been to the Minister because he conducted his promotion of this amendment on the basis that there had not been an expropriation of a right. So to be faithful to my noble friend I shall consider the second situation, mercifully briefly, because the Minister has heard the arguments on several occasions before as have your Lordships.
§ The second provision of Article 1 I can summarise very briefly. It states that the provision shall not impair the right of the state to control the use of property in accordance with the general interest. In those circumstances what is the test as regards compensation? It is whether or not the public authority disproportionately interferes with the rights. I see the Minister nodding and therefore to that extent we are ad idem.
My argument here, and that of my noble friend Lord Brittan, is that the Act has the effect of making a disproportionate interference with the rights of the landowner. As the Minister is well aware, a recent case in Strasbourg gives great support to my contention. That is the case of Chassagnou where certain hunters were given the right to go on the land of property owners despite the fact that those owners were against their presence. In that case—if I may weary your Lordships with a short extract from the judgment—the Court of Human Rights said,
In the present case the applicants do not wish to hunt on their land and object to the fact that others may come onto their land to hunt. However, although opposed to hunting on ethical
grounds, they are obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants' enjoyment of their rights as the owners of property. Accordingly, the second paragraph of Article 1 is applicable in the case".
§ The court went on, as the Minister may be aware, to say that what the hunters did was a clear breach of the convention. It also said that those elements of discretionary compensation which were open to the landowners in that case were insufficient to meet the requirement of compensation under the convention.
§ It would be difficult to find a case which was closer to the circumstances of the Bill than that. I therefore urge the Minister, at this late stage of the Bill in your Lordships' House, to accept the amendment of my noble friend Lord Brittan.
§ Lord Lester of Herne Hill
x: My Lords, I have not previously spoken in any of these debates and my only reason for doing so now is to respond to the claim made by my old friend, the noble Lord, Lord Brittan of Spennithorne, repeated by the noble Lord, Lord Kingsland, that,there is a powerful case that the grant of a right to roam without legal compensation would be held to be a breach [of Article 1 of the First Protocol] of the European Convention on Human Rights".I gave notice to the noble Lord, Lord Brittan, that I intended to reply. I am sorry that he is not in his place but he has a marvellously powerful understudy in the form of the noble Lord, Lord Kingsland.
In my view—I shall make this as brief as I can—there is no such powerful case for a general right to compensation under this Bill, and this amendment, like the previous versions, is wholly inappropriate and fails to strike a fair balance. The right to enjoy one's property, as the Minister rightly conceded, without arbitrary interference by the state is a basic civil right. It is anchored in our common law and in Article 1 of the First Protocol.
In view of the way in which Conservative noble Lords argued their case under this Bill, and because it shows what past practice is like, I should like to recall, first, that the government of the noble Baroness, Lady Thatcher, was distinctly unenthusiastic about giving full effect to the convention guarantee on the rights to property. It was that government which persuaded the European Court of Human Rights to give a narrowly restrictive interpretation to the property rights guaranteed by Article 1 of the First Protocol. I know that because I acted as counsel for one of the shipbuilding companies, Vosper, that was nationalised by the Labour government under the Aircraft and Shipbuilding Act.
In opposition, the Conservatives fought a vigorous campaign against that nationalisation and the effect of their long, protracted campaign was to render the compensation formula under the Act outmoded and unfair for some of the nationalised industries. The Conservatives promised, in opposition, that when returned to office they would reverse that unfair effect and provide full compensation to the victims. They did 1012 not keep that promise but argued successfully before the European Court, defending the effects of Labour's nationalisation statute.
But that was not all. In 1996 it was another Conservative government who refused to provide compensation for those in the business of buying cattle heads from abattoirs and processing head meat—a dreadful trade—whose business was made illegal by the ban on the sale of specified bovine material for human consumption. The Conservatives were also unsympathetic in 1997 when I moved a modest amendment that the noble Earl, Lord Peel, will remember to the Firearms (Amendment) Bill in order to provide compensation to registered firearms dealers.
I cite those examples to show that the Conservatives have been certainly no more robust, certainly no more generous in office than their Labour counterparts in upholding the principles for which the noble Lord, Lord Kingsland, spoke this evening.
Turning to the Bill, creating general rights of access across the countryside, of course, interferes with the use of the land of property owners affected by the Bill. But that is not in itself a breach of Article 1. A fair balance is required by that guarantee as by the convention as a whole. A fair balance is between the demands of the general interest and of the community and the requirements of the protection of the individual's fundamental rights.
The European Court of Human Rights made it quite clear that a particularly wide latitude is to be given to the public authorities of the state in making legislative choices about the control and use of property. When the noble Lord, Lord Kingsland, said that this was a deprivation of property under the first rule, if he will allow me to say so, that is palpable nonsense and I shall not even deal with it. Plainly it does not fall within the deprivation rule. We are talking about the control and use of land, not the seizure of land by the state.
But the discretion that we in Parliament, or the Government, enjoy is not unlimited. Individuals should not be expected to bear excessive burdens out of all proportion to the state's legitimate aims on the rights of others. One of the ways of striking a fair balance is by providing fair compensation where the particular circumstances require. But it is very rare to require compensation in cases involving control of use rather than the outright taking of property by the state. Perhaps I may give one example to which the Minister referred at a previous stage without explaining what he had in mind.
In the case of Baner v. Sweden in 1989 the European Commission on Human Rights considered a complaint that the applicant's exclusive right to fish using hand tackle had been transformed so that everybody was entitled to fish with hand tackle in the local lake. He complained that the legislation had taken away his exclusive fishing right without compensation—the kind of complaint being made by the noble Lords, Lord Brittan and Lord Kingsland.
1013 The Commission made it clear that a right to compensation is not inherent in the control of use provision in Article 1. What matters, it explained, is the severity of the concrete economic loss caused to particular individual property owners by the legislation. On the facts of that case it found the interference to be comparatively minor and, even though the applicant received no compensation, it decided the interference was fully justified.
Perhaps I can mention another example. I acted on behalf of the meat processors affected by the 1996 BSE ban in a claim before the Commission. Again it was unsuccessful because the Commission did not accept that, overall, my clients suffered an excessive burden. It similarly threw out a claim for compensation by wholesalers and distributors of firearms.
During the Second Reading debate, the noble Lord, Lord Brittan, relied heavily—as does the noble Lord, Lord Kingsland—on the French case of Chassagnou, one of the few cases in which a successful challenge was made under the control of use provision of Article 1. As the Court went out of its way to make clear, it was a most unusual case. The applicants belonged to the anti-hunting movement and complained of the effects of the legislation that had transferred hunting rights over their land to others without their consent. They were not seeking a right to hunt but to have their land free from hunting. The European Court decided that to compel small landowners to transfer hunting rights over their land so that others could make use of them in a way which was totally incompatible with their beliefs as anti-hunting people imposed a disproportionate burden that was not justified. The Court's reasoning depended in part on the lack of provision for compensation.
That unusual case was a rare example—there have been others—where the Court regarded the absence of compensation as relevant. What those European cases and others show is that there is no general right to compensation. The answer depends on the extent of the interference, the degree of concrete economic loss and all the surrounding circumstances, including the general framework of the legislation. Of course, the framework of this legislation is careful in striking a balance between conflicting interests.
However, I want to emphasise the fact that Article 1 does not require a general right of compensation for loss and damage caused by the creation of public rights of access. Yet that is precisely what the amendments tabled by the noble Lords, Lord Brittan and Lord Kingsland, seek to provide. I accept that there may be exceptional cases arising under the Bill in which an owner or someone with an interest in land might be able to claim that his property rights have been unfairly interfered with because the impact of the Bill had been so detrimental to the individual affected.
If the Government are right, such cases of unfairness and injustice will not arise. But if they are wrong—and the noble Lord, Lord Kingsland, fairly points out that they may be—the Human Rights Act will come to the rescue in a case of real unfairness involving a breach of Article 1. The alleged victim will be able to rely on 1014 Section 3 of the Human Rights Act and ask the courts to read and give effect to this Bill in a way that is compatible with Article 1 of the First Protocol. The alleged victim will be able to rely on Section 6 of the Human Rights Act and I pay tribute to the Government for having introduced that Act. They will be able to contend that public authorities, in exercising any powers and performing any duties under the Act, must do so in a way compatible with Article 1.
That is not all: the alleged victim will be able to bring proceedings against a defaulting public authority under Section 7(1)(a) and to claim damages for breach of a duty imposed by Section 6. In other words, the Human Rights Act provides protection for the aggrieved owner where the particular circumstances require the payment of compensation. And it does so in a way which avoids creating a general right to compensation for diminution in land value or, still worse, an indemnity for the costs incurred as a result of the right of access to land of a kind advocated by the noble Lord, Lord Brittan, and the noble Viscount, Lord Bledisloe. Therefore, if the worst fears of Conservative Peers are realised, the remedies will be at hand without the need for an amendment of this kind.
Finally, there is a world of difference between a carefully tailored remedy in an exceptional case under the Human Rights Act and the sweepingly broad general right to compensation or diminution in land value sought by the amendment. I believe that the Minister was right in certifying that the Bill is compatible with the convention right to property.
§ 8 p.m.
My Lords, whether or not the noble Lord, Lord Lester, is right in his argument and whether or not Article 1 applies, I suggest that the Government should regard themselves as bound by the precedent created by a Labour government in 1949. I well remember it because I was in the other place at the time. Under the National Parks and Access to the Countryside Act 1949, the then government provided exactly what my noble friend Lord Kingsland is suggesting should be done under this Bill; namely, that compensation should be paid when the public have been given a right of access over land described in that Act.
I should have thought that the Government would be ashamed of treating the matter differently under this Bill from the way it was treated by their predecessors in 1949 under that Act. I hope that if the Government do not consider themselves bound by that precedent the Minister will say why not.
§ Lord Goldsmith
My Lords, I, too, seek to respond to the challenge so ably put by the noble Lord, Lord Kingsland, as to why, by reference to the European Convention on Human Rights and to precedent, compensation is required. I can deal briefly with the European Convention on Human Rights because the noble Lord, Lord Lester—and no one knows better in this area—has uncharacteristically said that the Government are right to say that what they are doing does not contravene the convention.
1015 I hope that the noble Lord, Lord Kingsland, will forgive me for saying that he conflated two distinct rules in Article 1 of the First Protocol. The first is concerned with the expropriation of property; the taking of property. It is contained in the sentence which reads:No-one shall be deprived of his possession except in the public interest and subject to the conditions provided or by law and by the general principles of international law".The European Court has interpreted that rule restrictively to relate generally to the complete extinction of property rights. That is plainly not happening on this occasion.
§ Lord Kingsland
My Lords, the noble Lord is most generous in allowing me to intervene in what promises to be an extremely interesting and effective speech. I hope that I did not conflate the two. My argument was that a right of access is the same as a right of way; it falls into the category of a legal encumbrance and is therefore equivalent to expropriation.
That was my argument on the first arm and I went on to deal with the second arm about control. The noble Lord will perhaps disagree with my assessment of the effect of right of way on property but I hope he will accept that I did not conflate the two parts of the article.
§ Lord Goldsmith
My Lords, I heard the noble Lord—and Hansard will show whether my recollection is correct—describe what is taking place as "expropriation". As a matter of law or as a matter of common sense, I cannot see how what is being done can be described as "expropriation". Landowners continue to be able to deal with their land, to sell, to let, to farm and to turn it to advantage. Indeed, they can do things with their land which would result in the right of access disappearing. I cannot see how by any stretch of the use of language, what is happening there can be described as "expropriation". As the noble Lord said, it is in relation to expropriation cases, such as the Lithgow case which arose out of the nationalisation of the shipbuilding industry, that the question of compensation arises.
The other rule—and I accept that the noble Lord recognises the difference—is concerned with the control of the use of property. The issue there is not that of compensation but the question of fair balance. There should be a fair balance between the interests of landowner and of the community. When one looks at that, the following features of the Bill seem to me to be fundamental and compelling. First, the rights which the Bill will provide will be of great benefit to a large number of people, opening access for millions of people to the health, wellbeing and beauty of the countryside. So the public interest in the access is clear. I have sat through debates in this House, although I have not ventured previously to express opinions, and I understand that that is not in dispute.
1016 Secondly, it is a modest right. It is principally a right for open-air recreation for walking, applying only in the wildest and most undeveloped parts of the countryside—mountains, moors and heaths—with significant restrictions particularly in Schedule 2.
Thirdly, it will constitute minimal interference with the rights of owners. It will not prevent owners from developing or using their land. Users have no general right to annoy or obstruct any lawful activity by people lawfully on the land. There is no obligation even to do anything to facilitate access.
There is a considerable distinction there regarding rights of way, on which I should like to say a word in a moment. Unless there is an agreement under Chapter 3 in respect of which compensation or payments may be made, there is no requirement on owners to facilitate access. Owners can restrict or exclude access for 28 days without prior approval or for greater lengths of time on application. The responsibility of the owner to people who are injured on the land is severely and seriously limited by Clause 13. All those factors, including the tough restriction on dogs, seem to me to justify the statement that the interference is minimal; certainly no more than is justified by giving the great public benefit to which I have referred.
I think that when one looks at the fair balance of the legitimate aim and asks whether it is proportional, in Euro jargon, to the end being achieved, the answer is clear and totally to be distinguished from the French hunting case to which the noble Lord, Lord Brittan, has referred—which says a lot more about the attitude of the French to hunting than it does about the law—where what was being done was that the hunting rights, which are themselves a property right, were being transferred against the wishes of people who were ethically and fundamentally opposed to hunting. For them to be required to see people hunting on their land when they were ethically opposed to it is very different from the situation here. No one suggests for a moment that anyone is ethically opposed to a peaceful right to ramble or to roam. So far from it being crystal clear that the European convention requires compensation, it is crystal clear that this does not contravene the convention at all. I am very comforted by the view of the noble Lord, Lord Lester, on that.
The second point the noble Lord referred to was precedent: not the precedent referred to by the noble Lord the Minister in connection with the Law of Property Act or the Dartmoor Commons Act, which do not provide compensation although rights of access are provided. It seems to me that the position under the 1949 Act, quite apart from its antiquity, is quite different because there certain landowners were being required to provide access, whereas the vast majority were not. I believe the Government have estimated that 50,000 hectares of access were secured under that Act, compared with over one million hectares under this Bill. It seems to me entirely reasonable that landowner A, who is subject to an access order, compared with landowner B, who is not, although his land is the same, should say "I am suffering a 1017 detriment". If both landowners are subject to the same rights I do not see a diminution in value and I do not see the detriment.
There is another problem with the amendment, which seeks to apply the National Parks Act 1949. It is very easy to see how neat the proposed amendment is: to turn against the Government a piece of Labour legislation which provided for compensation, but if one examines the amendment, and particularly at this stage on Third Reading, the amendment does not work. Why not?—first, because under the 1949 Act compensation is payable by the local planning authority. That made sense because they were the ones who decided whether or not access should be ordered. Does the noble Lord intend that under this amendment compensation is to be payable by local planning authorities who have nothing to do with the grant of the rights by Parliament?
Secondly, compensation is not payable until five years after an access order is made under that Act. How does that apply here? There will be no access orders. Does that mean compensation will not be payable at all if this amendment goes through, or that the Act is to be read in some different way? There are exceptions and provisions in the 1949 Act. The definition of excepted land is different. How can one lift those provisions, as is proposed, and apply them to this present Bill?
If one finally takes the example of rights of way, to me this seems a different position: not only is a right of way a property right in itself but it carries within it positive obligations. The owner of land over which there are rights of way is obliged to secure that right of way, to clear crops away to make sure that that access is available. That is not the position under this Bill.
If I may turn from those fine legal points to a last comment, it is this. If one looks at the benefit in a modern society, we all suffer detriments and disadvantages in relation to our property and livelihoods. We find that planning permission is not granted when we would like it or that it is granted next door when we would rather it were not. In a modern society we all have to accept some of those burdens. I am glad that we have not reached the stage of the United States, where somebody has to pay for everything that you had rather did not happen. The fair balance here is to accept the benefit. The Bill has secured many changes which limit and remove some of the disadvantages that people had. I would respectfully suggest that to pass this amendment is not only unnecessary, but it may send a message which is not intended. However, the message that this House continues to be concerned about a particular class of right and property rather than the rights of the population as a whole I am sure is not intended: I simply sound concern that such a message might be given. I apologise to your Lordships for taking up so much time, but I hope the noble Lord will feel able to withdraw his amendment.
§ Lord Marlesford
My Lords, can I just raise one or two points arising from what has been said? The noble Lord, Lord Lester, made the point that concrete 1018 economic loss is the crucial test. I suspect there will be cases where it is possible to demonstrate such loss: presumably it will have to be determined by the courts as a matter of fact whether such loss exists. If it does, presumably compensation would be payable. Secondly, if we assume, as the noble Lord has just said, that it will be in the public interest for there to he access—and I am willing to accept that—and if we assume that the gain to the public is greater than the loss to the owner, surely that does not of itself make the owner's loss any smaller. Therefore it will be a matter for the courts to decide. The concrete economic loss is an easier test to apply, but of course ownership comprises many elements, including exclusivity or privacy—
§ 8.15 p.m.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord, Lord Marlesford, for giving way. Would he allow me to correct his interpretation of what I said? I did not say that the mere showing of economic loss gives rise to a right to compensation under the convention. I said that very rarely in a control-of-use case such as a planning blight that lasts for 10 years with no compensation, to take the Swedish example, the European Court will say that there should have been compensation as part of proportionality. I was seeking to explain that in almost all other cases of control of use, unless the degree of economic loss is so severe and the blight lasts for so long that it is quite exceptional as in the Swedish case of Sporrong and Lonnroth, there is no right to compensation . in respect of control of use. There is a right to compensation for the outright taking of property, and if I seemed to confuse by referring to economic loss, it was because part of it was the severity of the economic loss. However, if it is under control-of-use, in most cases one has had it.
§ Lord Marlesford
I am grateful to the noble Lord, and no doubt the Minister will take that into account as well. However, it seems to me that there is a real question to be determined, perhaps not by this amendment or by the Government in legislation, but by the courts, as to whether or not in particular cases people are suffering loss as a result of this legislation. Whether or not the loss can be compensated is in a sense a different point.
There are various routes, which perhaps we do not have time to debate this evening—the noble Lord, Lord Lester, made reference to them—by which that loss may or may not be compensatable. But surely the Government recognise that it is probable there will be various forms of loss, whether it be loss of privacy or economic loss, such as a drop in shooting rates because grouse moors become less hospitable to grouse and more hospitable to the public. That matter must he determined. Therefore, there is a real issue here which it is well worth debating.
§ Baroness Byford
My Lords, I support my noble friend's amendment. I am a mere country girl among lawyers. I have found it difficult to follow the 1019 argument of the lawyers, not because their contributions have been unclear but because of its complexity. I do not intend to belittle the contributions of the lawyers.
The amendment clearly provides for compensation for diminution in the value of the land. The noble Lord, Lord Goldsmith, said that he had attended some but, sadly, not all of the debates on this matter. The Government have accepted some of our concerns along the way to try to guard against the extra costs which will fall on farmers, farm managers and owners. The truth of the matter is that a right is to be taken away. The noble Lord, Lord Goldsmith, who spoke eloquently, said that this measure would give benefits to millions of people, which we all welcome. We do not deny that. However, that will take away somebody else's enjoyment, rights or however one expresses the interest. This amendment is a modest one. I am surprised that the Government are unwilling to consider the amendment in greater depth than in the past if they do not believe that the decrease in the value of the land will be great.
I should like to wear my rural hat. I am sure that all noble Lords are aware—some are much closer to the coalface—that in this country farming is still in crisis and continues to go through difficult times. As a result, farm incomes have fallen. Some of these people are not big landowners, but the problems are the same. Those who listened to earlier debates heard the Minister accept that, while the Government would help on the question of liability, landowners or managers would still face costs because of extra liability. In an earlier debate the noble Lord, Lord Northbourne, who is not in his place at the moment, recognised that greater access to the land would result in sheep worrying, which also has an effect on the income of those who live on the land. My noble friend Lord Marlesford referred to the fact that at the moment people were free to use and enjoy their land as they wished.
The noble Lord, Lord Goldsmith, referred, perhaps unintentionally, to a special class of people. I do not regard tenant farmers, farm owners and landowners as a special class of people. However, as the Bill will have an impact upon them I regard them as a minority class. The Bill will enable millions of people to enjoy the land. We do not disagree with that. However, noble Lords who have put the legal argument should perhaps hear people like me, with much less legal ability, put the other side and say why they firmly believe that there will be a lessening in value. I support the amendment moved so ably by my noble friend.
§ Lord Whitty
My Lords, like the noble Baroness, it ill behoves me to be caught in the crossfire between lawyers. I attempted to counter the argument of the noble Lord, Lord Brittan, at an earlier stage. I am now quite prepared to accept that both my noble friend Lord Goldsmith and the noble Lord, Lord Lester, have done it far more effectively than me. They do not appear to have convinced the noble Baroness of the 1020 rightness of my argument last time. Nevertheless, it is clear that those expert lawyers on human rights issues recognise that argument.
The Government are absolutely committed to observing the tenets of the European Convention on Human Rights and remain confident that the provisions and the regime of the Bill are completely compatible with them, including that part which relates to restrictions on the control of one's property. At one point the noble Lord, Lord Kingsland, made an allegation about expropriation, but I believe everybody recognises that he was slightly off the mark. We are referring here to restrictions on control. In that context, under the European convention what matters is proportion, balance and discrimination or otherwise.
The case of Chassagnou which the noble Lord, Lord Kingsland, and his noble friend Lord Brittan cited, was clearly decided on the basis of disproportion and discrimination between different types of landowner. In this case there is neither disproportion nor discrimination. So far as concerns disproportion, we have constructed a regime under which, in order to balance the requirement to provide access to the land, we have reduced liability on that land. We have excluded entirely from liability whole aspects of the management of the land. We have protected the ability of the landowner to use that land in whatever way he wishes for economic or other purposes. We have also provided a flexible regime in terms of restrictions by the landowner, either directly within his own discretion or by application, on the way in which right of access is provided.
When one comes to consider balance, clearly in certain circumstances monetary compensation may arise, but where we have provided compensation in other forms we have already met the requirements of the European convention. As we have proceeded we have probably come closer to agreement as to balance. We have throughout sought balance, and we believe that the Bill as amended by your Lordships provides precisely that balance.
I turn to the point raised by the noble Lord, Lord Renton, relating to discrimination and the National Parks and Access to the Countryside Act. There was discrimination between landowners in national park areas and those outside, and between landowners within national parks to whom orders were applied and landowners in those parks to whom no orders were applied. Here there is no discrimination between one owner of a grouse moor and another, one owner of heath land and another, or one owner of down land and another; they are all treated the same in England and Wales under the Bill. Therefore, neither on the ground of disproportion nor on the ground of discrimination does the Bill offend against the central tenets of the European Convention on Human Rights.
Some noble Lords opposite and those who purport to represent landowners want to have their cake and eat it. They want balance in the sense of reduced liability, a flexible regime, compensation and, on top of that, the abolition of all liability. That is not 1021 balance. What we have in the Bill now is a balance of human rights in relation to both the landowner and the thousands of people who will have a greater human right because of their ability to enjoy the countryside.
I hope that, with the backing of distinguished lawyers, the noble Baroness, Lady Byford, the noble Lord, Lord Kingsland, and even (in his absence) the noble Lord, Lord Brittan, are now convinced that the noble Lord is wrong and the Bill is in full compliance with all the provisions of the convention. Therefore, I hope the noble Lord will not pursue his amendment.
§ Lord Kingsland
My Lords, I thank your Lordships for a stimulating and apposite debate with respect to the amendment. Perhaps I may say to the noble Lord, Lord Goldsmith, that it was certainly not my intention to conflate or elide the two parts of Article 1 of the First Protocol. I believe I said in my opening remarks that, by regarding the position of a right of way as analogous to a right of access, a right of access became an uncompensated encumbrance on the land and therefore an expropriation.
I take the point made by the noble Lord, Lord Goldsmith, that he does not accept the analogy. But if the noble Lord is incorrect and I am correct and the analogy is accurate, then it is appropriate to submit to your Lordships that an encumbrance is an act of expropriation.
I turn to the second arm, which is the issue of control. It is always an education to listen to the noble Lord, Lord Lester, on the subject of the European Convention on Human Rights. Tonight was no exception. I take some comfort from what the noble Lord said about those circumstances—though rare, he added—when compensation might be paid. I thought I heard the Minister accept that such circumstances in particular cases might arise. If that is so, then surely, a fortiori, the Government should be providing a mechanism for such circumstances.
At earlier stages of the Bill my noble friend Lord Brittan accepted that someone seeking compensation would have to prove his case; he would have to prove real economic damage. So what would be the harm if the Minister inserted into the Bill, even at this late stage, a mechanism for making applications for compensation in those circumstances?
The noble Lord looks at me stonily. I suspect—
§ Lord Whitty
My Lords, the noble Lord may have misinterpreted me. I said that one could conceive of situations where compensation was part of the balancing. In this case we have provided balance in other ways. Therefore, a general provision for compensation is not appropriate.
§ Lord Kingsland
My Lords, I had misunderstood the noble Lord. He clearly remains intransigent. In those circumstances it is my wish to test the opinion of the House.
§ 8.33 p.m.
§ On Question, Whether the said amendment (No. 18) shall be agreed to?1022
§ Their Lordships divided: Contents, 41; Not-Contents, 150.1023
|Division No. 5|
|Allenby of Megjddo, V.||ManCToft, L.|
|Arran, E.||Marlesford, L.|
|Astor of Hever, L.||Molyneaux of Killead, L.|
|Attlee, E.||Monro of Langholm, L.|
|Blatch, B.||Monson, L.|
|Buscombe, B.||Montrose, D.|
|Byford, B.||Northbrook, L.|
|Camegy of Lour, B.||Northesk, E.|
|Chadlington, L.||O'Cathain, B.|
|Craig of Radley, L.||Palmer, L.|
|Craigavon, V.||Park of Monmouth, B.|
|Dixon-Smith, L.||Peel, E.|
|Dundee, E.||Renton, L.|
|Renton of Mount Harry, L.|
|Gardner of Parkes, B.||Roberts of Conwy, L.|
|Glentoran, L.||Seccombe, B.|
|Hanham, B.[Teller]||Selborne, E.|
|Hooper, B.||Shaw of Northstead, L.|
|Kingsland, L. [Teller]||Vivian, L.|
|Luke, L.||Waddington, L.|
|McCoU of Dulwich, L.||Wilcox, B.|
|Acton, L.||Goldsmith, L.|
|Addington, L.||Goodhart, L.|
|Ahmed, L.||Gordon of Strathblane, L.|
|Alderdice, L.||Gould of Potternewton, B.|
|Amos, B.||Grabiner, L.|
|Andrews, B.||Greaves, L.|
|Archer of Sandwell, L.||Greengross, B.|
|Attenborough, L.||Grenfell, L.|
|Bach, L.||Hamwee, B.|
|Barker, B.||Hardy of Wath, L.|
|Bassam of Brighton, L.||Harris of Greenwich, L.|
|Berkeley, L.||Harris of Haringey, L.|
|Bernstein of Craigweil, L.||Harris of Richmond, B.|
|Billingham, B.||Harrison, L.|
|Blackstone, B.||Haskel, L.|
|Borrie, L.||Haskins, L.|
|Bradshaw, L.||Hattersley, L.|
|Brett, L.||Hayman, B.|
|Brooke of Alverthorpe, L.||Hilton of Eggardon, B.|
|Burlison, L.||Hollis of Heigham, B.|
|Carter, L.[Teller]||Hooson, L.|
|Clarke of Hampstead, L.||Howells of St. Davids, B.|
|Clement-Jones, L.||Hughes of Woodside, L.|
|Clinton-Davis, L.||Hunt of Chesterton, L.|
|Cohen of Pimlico, B.||Hunt of Kings Heath, L.|
|Crawley, B.||Irvine of Lairg, L. (Lord Chancellor)|
|Davies of Coity, L.||Islwyn, L.|
|Davies of Oldham, L.||Jacobs, L.|
|Dean of Thornton-le-Fylde, B.||Jay of Paddington, B. (Lord Privvseal)|
|Donoughue, L.||Judd, L.|
|Dubs, L.||Kennedy of The Shaws, B.|
|Elder, L.||King of West Bromwich, L.|
|Evans of Parkside, L.||Lea of Crondall, L.|
|Evans of Watford, L.||Lester of Herne Hill, L.|
|Ezra, L.||Lockwood, B.|
|Falconer of Thoroton, L.||Macdonald of Tradeston, I.|
|Falkland, V.||McIntosh of Haringey, L. [Teller]|
|Farrington of Ribbleton, B.|
|Faulkner of Worcester, L.||McIntosh of Hudnall, B.|
|Filkin, L.||MacKenzie of Culkein, L.|
|Gale, B.||McNally, L.|
|Gibson of Market Rasen, B.||Maddock, B.|
|Gilbert, L.||Mar and Kellie, E.|
|Massey of Darwen, B.||Sharp of Guildford, B.|
|Methuen, L.||Shepherd, L.|
|Miller of Chilthorne Doraer, B.||Shutt of Greetland, L.|
|Mitchell, L.||Simon, V.|
|Molloy, L.||Smith of Leigh, L.|
|Morgan, L.||Stone of Blackheath, L.|
|Morris of Castle Morris, L.||Symons of Vemham Dean, B.|
|Morris of Manchester, L.||Taylor of Blackburn, L.|
|Newby, L.||Thomas of Walliswood, B.|
|Nicholson of Winterbourne, B.||Thomson of Monifieth, L.|
|Nicol, B.||Thornton, B.|
|Northover, B.||Tomlinson, L.|
|Oakeshott of Seagrove Bay, L.||Tope, L.|
|Peston, L.||Tordoff, L.|
|Phillips of Sudbury, L.||Turner of Camden, B.|
|Plant of Highfield, L.||Walker of Doncaster, L.|
|Ponsonby of Shulbrede, L.||Wallace of Saltaire, L.|
|Prashar, B.||Walmsley, B.|
|Prys-Davies, L.||Warner, L.|
|Puttnam, L.||Warwick of Underdiffe, B.|
|Ramsay of Cartvale, B.||Watson of Invergowrie, L.|
|Redesdale, L.||Wedderbum of Charlton, L.|
|Rendell of Babergh, B.||Whitaker, B.|
|Rennard, L.||Whitty, L.|
|Rodgers of Quarry Bank, L.||Wigoder, L.|
|Russell, E.||Williams of Crosby, B.|
|Russell-Johnston, L.||Williams of Elvel, L.|
|Sainsbury of Turville, L.||Williams of Mostyn, L.|
|Sawyer, L.||Winston, L.|
|Scott of Needham Market, B.||Woolmer of Leeds, L.|
|Sharman, L.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 42 [References to public places in existing enactments]:
Lord Whitty moved Amendment No. 19:
Page 27, line 40, after ("done") insert (", or omitted to be done,").
§ On Question, amendment agreed to.
§ Baroness Farrington of Ribbleton
My Lords, I beg to move that the House do now adjourn during pleasure until 9.30 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 8.45 to 9.30 p.m.]
§ Proceedings after Third Reading resumed.
§ Clause 60 [Rights of way improvement plans]:
Lord McIntosh of Haringey moved Amendment No. 20:
Page 39, line 28, leave out ("which local rights of way provide") and insert ("provided by local rights of way (and in particular by those within paragraph (a) of the definition in subsection (5))").
§ The noble Lord said: My Lords, I beg to move Amendment No. 20 and to speak at the same time to Amendments Nos. 21, 22, 25 and 31.
§ Amendment No. 20 arises from a very useful debate on Report on an amendment tabled by the noble Baroness, Lady Miller of Chilthorne Domer, aimed at maximising recreational opportunities for walkers, horse riders and cyclists away from the fumes and danger of motor vehicles. It was clear from the debate that the motive behind the amendment had considerable support in your Lordships' House and we have tabled Amendment No. 20 accordingly.1024
§ The amendment relates to Clause 60(2), which sets out matters which local authorities are required to assess in preparing their rights of way improvement plans. The matters include the opportunities which local rights of way provide for exercise and other forms of open-air recreation and for the enjoyment of each authority's area. Amendment No. 20 would place additional emphasis on the recreational opportunities provided by footpaths, cycle tracks, bridleways and restricted byways; namely, just those types of highways that serve pedestrians, horse riders, cyclists and those using horse drawn carts. The effect, when taken with Clause 60(1)(a) and (b), would be to require authorities particularly to attend to an assessment of such opportunities in their rights of way plans and their statement of what action they propose to take to improve their rights of way network. The recreational interests of non-motorised users would therefore be emphasised on the face of the Bill.
§ Amendments Nos. 21 and 22 relate to Clause 64, which inserts a new Section 137ZA into the Highways Act 1980. This new section enables a magistrates' court, when convicting someone of wilfully obstructing a highway under Section 137 of the 1980 Act, to order them to remove the obstruction. Failure to comply with such an order will be punishable by a fine not exceeding level 5 on the standard scale, which is currently £5,000. Amendments Nos. 21 and 22 would fulfil the commitment we gave on Report to bring forward amendments to Clause 64 in response to an amendment tabled by the noble Baroness, Lady Scott of Needham Market. The amendment in the name of the noble Baroness, Lady Scott, would have enabled a magistrates' court to order that an obstruction be removed and the costs recovered from the offender. We agree with the noble Baroness's objective, which is to get the obstruction removed as soon as possible, but as we explained at the time, we did not think that her amendment was the most appropriate way of achieving it.
§ We are proposing an alternative approach. Amendment No. 22 would achieve two important aims. First, it would make the offence of failing to comply with an order of the court to remove an obstruction a continuing offence. There would be fines of up to one-twentieth of level 5 on the standard scale for each day the offence was committed after a first conviction under new Section 137ZA. At present, that would be up to £250 a day. So, if, after being convicted of failing to remove an obstruction by the date specified by the court, a person still failed to take action, he could be prosecuted a second time. If convicted, he would face a fine for each day the obstruction had remained since the first conviction. If, for example, the second conviction was a month after the first, the person could face a fine of up to £7,750. After that, he could face further prosecutions and further daily fines if the obstruction was still not removed.
§ We believe that this would provide a powerful incentive for a convicted person to remove an obstruction. However, it may be the case that a highway authority would be prepared to remove the 1025 obstruction itself, provided that it had the power to recover its costs. Highway authorities have powers at common law to remove obstructions from their highways—either because the highway is vested in them, or because it has been decided by a court that there is an obstruction. Amendment No. 22 would provide ancillary power, where these powers were exercised by authorities, summarily to recover their costs from a person convicted under new Section 137ZA. Amendment No. 21 is consequential on Amendment No. 22.
§ Amendment No. 25 would assist local highway authorities generally in taking action to remove obstructions from footpaths, bridleways and cycle tracks. It relates to Section 300 of the Highways Act 1980 and Section 21(2)(b) of the Road Traffic Act 1988. Section 300 provides immunity to local authorities in relation to statutory provisions that prohibit the use of appliances or vehicles on footpaths, bridleways and footways where they are exercising particular functions, such as cleansing, maintenance and improvement. Section 21(2)(b) makes similar provision by providing for a defence in respect of the offence of driving or parking on cycle tracks.
§ A judgment by the House of Lords (Goodes v. East Sussex County Council) provides for a narrow interpretation of what the "maintenance" of highways comprises. Amendment No. 25 would clarify that the protection provided to highway authorities by Section 300 and Section 21(2)(b) in the carrying out of their function does extend to the functions of the prevention or removal of obstructions from footpaths, bridleways and cycle tracks, and the prevention or abatement of nuisances or other interferences with such highways.
§ Amendment No. 31 is consequential upon amendments made to Clause 63 in Committee, which increased the number of new sections in that clause, and upon Amendment No. 22 in so far as this empowers highway authorities to recover the costs of removing an obstruction. Amendment No. 31 would ensure that none of these provisions could come into force in the Isles of Scilly except by order made by the Secretary of State after consultation with the Council of the Isles. I beg to move.
§ Baroness Scott of Needham Market
My Lords, the House is strangely subdued following the courtroom dramas before the adjournment. Nevertheless, these are important amendments and I thank the Minister for bringing forward the two amendments in response to the concerns that we raised at earlier stages of the Bill. There was general support on all sides of the House for the concept of a more user friendly-based approach to rights of way, and an understanding that for many people the rights of way network provides an opportunity for all kinds of healthy activities and so on which are cheap and available to everyone.
The issue of the magistrates' courts is of great importance to those people who seek merely to exercise their lawful right to use a right of way which appears on the definitive map—and which has often appeared there only after a great deal of determined effort on the part of a user group to put it there. To find 1026 that not only are these routes sometimes obstructed but also that someone found guilty of placing an obstruction cannot be forced to remove it, is a great frustration.
Although the Government have chosen to take a slightly different approach from the one that we would have taken, I am pleased that the amendments have gone a long way towards addressing this particularly difficult issue.
§ Baroness Byford
My Lords, I, too, thank the Government for bringing forward this group of amendments. The noble Lord, Lord Northbourne, is not in his place. He raised the issue—which, as the noble Baroness, Lady Scott, said, received great support from all sides of the House—and we are grateful to the Government for their response.
§ On Question, amendment agreed to.
§ Clause 64 [Power to order offender to remove obstruction]:
Lord McIntosh of Haringey moved Amendments Nos. 21 and 22:
Page 46, leave out lines 9 to 14.
Page 46, line 18, at end insert ("; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding one-twentieth of that level for each day on which the offence is so continued.
(5) Where, after a person is convicted of an offence under subsection (4) above, the highway authority for the highway concerned exercise any power to remove the cause of the obstruction, they may recover from that person the amount of any expenses reasonably incurred by them in, or in connection with, doing so.
(6) A person against whom an order is made under subsection (1) above is not liable under section 137 above in respect of the obstruction concerned—
§ On Question, amendments agreed to.
§ Clause 68 [Vehicular access across common land etc.]:
The Earl of Selborne moved Amendment No. 23:
Page 48, line 13, at end insert—
("() In the case of access to a site containing a residential property or properties whose construction was completed prior to 1st January 1906 and where the number and use of the building or buildings is materially unchanged since that date, no sum of money is payable by the property owner to the owner of the access land so long as there is no evidence that the access land owner either restricted or licensed the right of access during the period from 1st January 1906 to 5th May 1993.").
§ The noble Earl said: Amendment No. 23 seeks to resolve what I believe to be an inequity which still faces some owners of property built before 1906 to which access is gained over common land.
§ We have dealt with this issue at every stage of the Bill and I need not remind the House of the problems which arose from properties which had access over common land. From 1926 onwards it was a criminal offence to drive over commons, and so prescriptive 1027 rights could not be gained from 1926 onwards. One would have thought that the owners of properties built in 1906 and earlier would not have too much to worry about. After all, the significance of the date 1906 is that it is 20 years before 1926. If owners could prove that they had rights of access for vehicles—whether wagons, carts, pony and trap or motor vehicles—from 1906 onwards, they would have no need to avail themselves of the provisions of Clause 68, the most helpful clause that the Government added at Report stage. It is correct that if they can prove that they had access from 1906 onwards, there is simply no problem. However, in many cases, that is simply impossible. A careful examination of the map does not necessarily reveal how access was gained to such houses. There is, therefore, great difficulty in gathering evidence to prove how it was acquired.
§ Any reasonable court could infer—not "presume"; I use the word "infer" carefully—that if someone has lived in one of these houses, some of which date only from 1906 but others go back to the time of Queen Anne, there must have been access to the house for vehicles of some kind. I think I am also right in saying that it not impossible—even if a house owner cannot demonstrate that the track was used continuously—for a court to infer that the right of way would have been transferred as the track changed.
§ It may seem obvious that people who own houses dating back to 1906 or earlier have nothing to worry about. But they do worry. Under the terms of the regulations there will be a requirement to serve notice on the access owner within a period that will be determined. If the house owner does not avail himself of that because he thinks that it is all right not to do so, he could find himself in court facing the access owner who is claiming that the statutory right of access has not been registered and that he will demonstrate that the house owner does not have a prescriptive right. Then, the house owner will face the most appalling complications in court.
§ As the noble Lord, Lord Williams, said at an earlier stage of the Bill, for most of us the instinct is not to face court if it can be avoided. The alternative is to pay a bill of 1 per cent of the value of the land or whatever the regulation suggests. We can assume that the figure will be 1 per cent, as that is the amount suggested for houses built before 1930. I have no quarrel with a figure of 1 per cent for houses built in the 1920s or thereabouts, which cannot have had a prescriptive right. As I have explained, the ability to acquire prescriptive rights ended in 1926, so the 1 per cent is perfectly reasonable. But the house owner who, because he does not have the stomach or even the means to go to court with what could be a problematical case in the absence of documentary evidence, pays the 1 per cent when he is fairly certain that a court could infer a right of access is effectively taking out a very expensive insurance policy. It is a great deal of money. It is not unreasonable to assume that some of these houses, even if they are lived in by people of relatively modest means, are highly desirable nowadays, being set in the middle of a common. The 1028 value of the house will normally be in six figures. We are talking about between £1,000 and £3,000 for an insurance policy in order to make sure that one cannot at a later date be held up for some larger figure because the time which Clause 68 helpfully allows for the acquisition of the statutory right has run out.
§ My amendment may or may not be appropriate. It suggests that there could be a presumption of a prescriptive easement and that, therefore, there would be no payment. I listened to the high-powered legal debate that took place earlier and I venture into these affairs as a "country boy"—my noble friend Lady Byford described herself as a "country girl". I am fairly clear that I shall be told by the Minister that it is most unwise to acquire a prescriptive easement by presumption. Nevertheless, I hope that he will recognise that a precedent has been created in having two tiers of rates—one for houses built before 1930 and one for those built after 1930. We believe that the respective rates may be 3 per cent or 1 per cent. In the case of houses built before 1906—in regard to which any reasonable court would infer some sort of access—the regulations should provide a third tier. That third tier should be something less than 1 per cent, simply to demonstrate that you have paid a sum of money; but you should not be held to ransom, which, I believe, is effectively the case because you are not sure whether you can ultimately prove your prescriptive right.
§ When they are drawn up, I hope that the regulations will at least have a third tier, a much lower tier, for those pre-1906 cases. I recognise that that is not what my amendment says; indeed, I acknowledge that fact. I see the glint in the Minister's eye and suspect that he may shoot me down with legal information which I shall find little to counterbalance. Nevertheless, I commend to him the idea that, having enjoyed their houses and the access to them by whatever route for so long, these 1906 householders will be faced with an astonishing bolt out of the blue when they find that they are expected to pay 1 per cent of the value of their houses to someone who has suddenly been identified as the owner of the commons. In the circumstances, a nominal payment for these access owners could be described as a "windfall". So let us not hear about human rights for the landowners. I beg to move.
§ 9.45 p.m.
§ Baroness Miller of Chilthorne Domer
My Lords, my noble friend Lady Sharp attached her name to some of the amendments moved previously by the noble Earl, Lord Selborne. However, she is unable to be here this evening because she is in the process of presenting a scientific paper. She very much wants me to say from these Benches that we are all most grateful to the noble Earl for bringing this issue to the attention of the House. Indeed, he has enjoyed much success in getting this issue resolved.
Although, as the noble Earl acknowledged, this amendment may not be legally perfect, I am sure that my noble friend would join with him in hoping that the Government will take on the idea behind his proposal. As they continue to bring forward orders relating to this issue, perhaps the Government will bear in mind 1029 the feelings expressed by this House in trying to resolve the problem. In the meantime, I thank the noble Earl for his persistence in pursuing this matter, thereby ensuring a resolution under the Bill and avoiding a delay of many years.
§ Lord Glentoran
My Lords, I note that Amendment No. 24 has not yet been spoken to by the Minister, but, even so, I should like to reiterate basically what the noble Baroness just said. My noble friend Lord Selborne initiated this long and interesting debate. I am sure that he has done a very good turn, if I may use that phrase, not only to those directly involved but also to those involved in the matter on the government side, and others, in helping to solve this very difficult problem.
I sincerely hope that the Minister will be able to accept at least the spirit of the amendment in one way or another. In speaking to Amendment No. 24, before the Minister has moved it, I should just like to thank the noble Lord and welcome the amendment.
§ Lord McIntosh of Haringey
My Lords, perhaps I may start by speaking to Amendment No. 24, as that has been most recently mentioned. As has become clear, this amendment will provide that any regulations made under what is now Clause 68 of the Bill—vehicular access over common land—should proceed via the affirmative resolution procedures. In speaking to this amendment, I should apologise for unintentionally misleading the House during the debate on Report.
At that time, I was under the impression that we had notified the Delegated Powers and Deregulation Committee of our intention to make regulations subject to the negative procedure. I suggested then that, unless the committee advised us otherwise, we intended to proceed on that basis. However, I was unaware of the fact that the committee had not been informed of our proposals. In any case, I accept the point—indeed, it is good to have the noble Lord, Lord Ampthill, on the Woolsack at this moment, because he chaired the relevant meeting of the committee—that it is really not quite proper for government to propose something less in the expectation that the committee might demand more.
I believe that it is up to government to propose the degree of delegation that they consider to be appropriate. If the committee agrees with that, so much the better. But, if not, we then have to consider our position. I do not believe that it is right for us to propose a negative procedure in the hope that we may get away with it, if I may put it that way. That was not the intention of the department.
I have read carefully the report of the Select Committee, which tactfully and courteously rebukes me for what I said. However, I think that the result is perfectly satisfactory; namely, that we propose an affirmative resolution procedure.
I turn to Amendment No. 23. I must confess that when I first heard the noble Earl, Lord Selborne, introduce the amendment I thought he was talking 1030 about the iniquity of the Government's amendment. I then realised he was talking about inequity, which is nothing like as bad. However, I remind him that when he spoke on these matters at Report he talked of the need for fine tuning. I believe that we are at the fine-tuning stage now. I do not think that we are at issue on the most important principles.
The noble Earl legitimately asks the Government to reconsider their position on the question of free easements for properties constructed before 1st January 1906. His amendment would mean that nothing has to be paid in these cases although he referred in his speech to a nominal sum. I shall not repeat his justification for that.
One effect of the amendment would be to deem a right of access for any property built prior to 1906 without there being any evidence to support the existence of an access, let alone its use for vehicular traffic. It suggests that it is reasonable to assume that an access has been used continuously since that date without interruption, over the same land and by vehicles. This appears to us to be a very substantial assumption. The amendment would be at odds with the general laws on prescription which entail those claiming a prescriptive right to produce evidence of how that right has been acquired. I am not convinced that we should remove this requirement—that would constitute a fairly dramatic change in the laws on prescription—in these circumstances.
During consultation respondents told us that the position on Newtown Common, and other similar places, may not be typical. We have been told that elsewhere landowners have been granting easements for access over their land for many years without problems; also, in some areas, landowners are happy for property owners to drive across their land without charge in the full knowledge that no legal right is being acquired. It is unfortunate that a few landowners have been demanding high charges for granting a right of access. However, this is not necessarily the posit ion in all areas.
Our proposals take account of older properties. As I made clear on Report, the Government accept that there is a case for a reduced compensation payment for such properties. We propose that the regulations should state that the maximum compensation payment for residential properties built before 1st December 1930 should be 1 per cent of the value of the property where there have been no material changes. This is a very substantial reduction from the amount that owners can currently expect to be asked to pay.
As I have said to the House, we accept that the problem of vehicular access over common land needs addressing. Our objective is to create a fair balance between the aspirations of property owners and the rights of landowners. We believe that our proposals for a tiered system of compensation, at rates substantially lower than would otherwise have been paid and where older properties are more favourably treated, achieve this balance.
The noble Earl, Lord Selborne, now proposes that our tiered solution should be modified from two tiers to three tiers. I repeat that as a result of Amendment 1031 No. 24 the exact levels of compensation will be set in regulations which will be debated by both Houses in due course. It is not strictly correct to suggest that the Hanning case established the principle that prescriptive rights cannot be acquired when a criminal offence is involved; the principle was already well established but it was overlooked when some houses on or adjoining commons were being built or sold.
The noble Earl, Lord Selborne, suggests that it would be a considerable imposition for a property owner to pay 1 per cent as an insurance in case a court does not at a later date uphold a claim for a prescriptive right. That is an issue that we intend to cover in the regulations. We do not want the time limits that are imposed in the regulations to work against a property owner who believes that he has a prescriptive right but needs time to prove it. That was another point that the noble Earl, Lord Selborne, made in moving the amendment.
We have suggested that property owners should have six months from the date when access is challenged or six months from Royal Assent, whichever is the later, to lodge a claim. We shall look at those time limits again. There will have to be some kind of time limit or the scheme could be open to abuse. However, I am sure that the remarks of the noble Earl, Lord Selborne, will be taken into account when framing the regulations.
The regulations are being made in response to legitimate concerns raised in this House. I have made clear at all times that the debates in the House are being considered in the framing of the regulations. We have given our ideas as to what those regulations should contain but we shall also pay serious attention to the points raised today before the regulations are finalised. I do not believe that it would be right to move from the considered tiered structure that we propose to a further structure. To move to a nil or nominal payment would result in a breach of the existing law of prescription.
§ The Earl of Selborne
My Lords, when moving the amendment I accepted that I was unlikely to get away with a nil payment proposal and that the law would look doubtfully on a presumption of a right of way.
I have accepted the principle of tiered payment. However, I ask the Government to recognise that the owners of houses built before 1906—I do not think that it is asking too much to suggest that those houses would have had vehicular access—will have some difficulty in proving that they have a right. If they are able to do so, there is no problem. But if they cannot do so, I suggest that those houses are in a different position from those built before 1930. When the regulations are framed, I hope that that point will be borne in mind. If the situation were recognised, that would be appreciated by the relatively small number of people involved. Within the tiers already agreed by the Minister, perhaps there could be a third tier involving a lower sum.
I commend that proposal to the Minister. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 24:
Page 48, line 29, leave out from ("and") to end of line 30 and insert ("no such regulations shall he made by the Secretary of State unless a draft has been laid before, and approved by a resolution of, each").
§ On Question, amendment agreed to.
§ Clause 70 [Minor amendments to Highways Act 1980]:
Lord McIntosh of Haringey moved Amendment No. 25:
Page 50, line 43, at end insert—
("(3) In section 300 of that Act (right of local authorities to use vehicles and appliances on footways and bridleways), in subsection (1) after "verges," there is inserted "for preventing or removing obstructions to them or otherwise preventing or abating nuisances or other interferences with them,".
(4) In section 21(2)(b) of the Road Traffic Act 1988 (defence to charge of driving or parking on cycle track for highway authority vehicles), after "verges" there is inserted ", or the preventing or removing of obstructions to the cycle track or the preventing or abating in any other way of nuisances or other interferences with the cycle track,".").
§ On Question, amendment agreed to.
§ Clause 77 [Ramsar sites]:
Baroness Farrington of Ribbleton moved Amendment No. 26:
Page 54, line 15, leave out ("Council") and insert ("body").
§ The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendment No. 53. These amendments are both technical following changes we made in Committee and on Report.
§ Amendment No. 26 confirms that action under new Section 37A(2), which relates to Ramsar sites and which is inserted into the 1981 Act by Clause 77, is for English Nature and the Countryside Council for Wales. The action is notifying the owners and occupiers that a Ramsar site has been designated by the Secretary of State.
§ Amendment No. 53 clarifies that the relevant authority which authorises in writing a person to enter land is, for the purposes of the power of entry to ascertain whether a stop notice should be served (in Schedule 11, paragraph 21), the conservation agency. I beg to move.
§ On Question, amendment agreed to.
§ Clause 86 [Establishment of conservation boards]:
Baroness Farrington of Ribbleton moved Amendment No. 27:
Page 61, line 13, at end insert—
("and shall not make the order unless satisfied that the majority of those local authorities consent.").
§ The noble Baroness said: My Lords, in Committee and on Report we debated a number of amendments which would have required varying degrees of agreement among affected local authorities before an AONB conservation board could be established. Ministers have explained that it is not the Government's intention to foist conservation boards on areas where their establishment is not supported. 1033 They are expected to be most suitable for some of the larger AONBs which cross a number of local authority boundaries. We expect the first moves towards the establishment of a conservation board to come from the local area.
The amendments simply support those principles by introducing a requirement that the majority of local authorities that would be affected by the establishment of a conservation board must consent when consulted by the Secretary of State or the National Assembly for Wales before an order is made establishing such a board. The requirement will also apply to the making of an order amending or revoking an establishment order. The amendments are similar in effect to Amendment No. 234A, introduced on Report by the noble Earl, Lord Peel. I beg to move.
§ 10 p.m.
§ Earl Peel
My Lords, I am grateful to the Government for tabling the amendments. They more than satisfy the points that I tried to raise on Report. I am convinced that many local authorities within existing and potential AONBs will be greatly relieved. The amendment will create a mood of much greater co-operation among local authorities, which can only benefit the AONBs and will result in a much more positive attitude towards conservation boards for the management of those areas.
§ On Question, amendment agreed to.
Baroness Farrington of Ribbleton moved Amendment No. 28:
Page 61, line 19, at end insert—
("and shall not make the order unless satisfied that the majority of those local authorities consent.").
§ On Question, amendment agreed to.
Lord Renton of Mount Harry moved Amendment No. 29:
After Clause 90, insert the following new clause—