HL Deb 09 October 2000 vol 617 cc32-86

(" . Schedule (Constitution of the Agricultural Land Tribunal) shall have effect.").

The noble Lord said: In moving the amendment, I shall speak also to Amendment No. 306A; the one following immediately upon the other.

The amendment concerns amending the constitution of the agricultural land tribunal. The new clause of the new schedule would make appeals under the access provisions to the agricultural land tribunal rather than to the Secretary of State or the National Assembly for Wales. The agricultural land tribunal was established in 1947 to hear applications between farmers, landowners and, it was envisaged, the Minister on agricultural matters. It has functioned successfully for over 50 years. The tribunal sits with a legally experienced chairman, a farming member and a landowner member.

In order to deal with access matters, the tribunal should be re-formed to have a farming or land-owning member and a member representing users of access rights. A special panel of assessors expert in ecology, land management, nature conservation or heritage protection should be formed to advise the tribunal if specialist issues arise.

The amendments simply make these changes to the agricultural land tribunal provisions in the Agriculture Act 1947. The composition of the tribunal on existing matters is unaltered. If one gives it considerable thought, I believe that that could be a helpful amendment. I beg to move.

4.30 p.m.

Baroness Young of Old Scone

I am a little confused. We seem to be in danger of making a silk purse out of a sow's ear—if that is not the wrong thing to say in view of the difficulties of the pig farming industry at present. It is true that the agricultural land tribunals have worked successfully since 1947, although I temper somewhat the word "successfully". They are legalistic and rather slow. They have a slim, focused remit which the amendment would extend quite considerably.

The constitution proposed in Amendment No. 306A does not fit the bill. I presume that the new access assessors panel would ensure that ecological, nature conservation and heritage issues were taken into account. It would be unhelpful if it sat to one side and had no real role. It is unclear how the panel would be utilised. Would it be at the discretion of the chairman?

The principal parties should include bodies that have a role in nature conservation and heritage protection. It is unhelpful to specify only the landowners and those who wish to have access as the principal parties.

A tribunal is not the right mechanism for dealing with appeals, because it implies that, other than the chairman, there will be only the two parties between whom the dispute has arisen. That is not the right way forward, because all the relevant points of view need to be heard, not just two.

Splendid bodies though the agricultural land tribunals may be in other ways, for a variety of reasons they are not right in this case.

Lord Whitty

The amendments would make sense only if the noble Lord had pursued his amendments the other night to ensure that appeals under Part I were heard by the land tribunals instead of the Secretary of State. I am sure that noble Lords do not want to go over all the arguments again, but in essence we do not believe that the agricultural land tribunals are the most appropriate bodies for dealing with appeals under the Bill. As my noble friend Lady Young of Old Scone has said, they deal with specific disputes between agricultural landlords and their tenants that arise under the Agricultural Holdings Act 1986.

The amendments would alter the constitution of the tribunals, increasing their work load and resulting in a much slower appeals mechanism than is provided for in the Bill. They would also increase costs and, potentially, the time-scale of appeals.

The Bill makes adequate provision for appeals procedures. The provision enabling the Secretary of State to delegate appeals will allow for the appointment of a person or body with the requisite knowledge, manpower and experience to deal with any appeals that arise. The agricultural land tribunals do not have such expertise and it would be undesirable to impose on them an additional duty along very different lines from their current remit and work load. I hope that the noble Lord will not pursue the amendments.

Lord Glentoran

I listened with interest to the noble Baroness, Lady Young of Old Scone. I agree with her that the proposed new procedure would take considerably more time; we need results from the tribunals in the shortest possible time, as the Minister has said. I hope that any tribunal that is set up by the Secretary of State or the Countryside Council for Wales will be correctly balanced. In that hope and in the hope that the system will respond quickly as well as justly, I rest my case and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 39 and 40 agreed to.

Clause 41 [Interpretation of Part I]:

The Deputy Chairman of Committees

Before I call Amendment No. 305, I must inform your Lordships that if it is agreed to, I cannot call Amendment No. 306.

Baroness Byford moved Amendment No. 305: Page 25, leave out lines 18 to 21 and insert— (""livestock" includes cattle, horses, equines, asses, mules, hinnies, sheep, pigs, goats and poultry, and deer not in the wild state, and also while in captivity or while on access land as defined in section 1, pheasants, partridges and grouse:").

The noble Baroness said: I shall not spend the Committee's time on the amendment. We are trying to broaden the definition of "livestock" to include the animals mentioned in the amendment. I beg to move.

Baroness Masham of Ilton

I should like to ask a question. "Equines" includes horses and ponies, but does it also include asses, mules and hinnies?

Baroness Byford

The amendment may not be perfect, but I hoped that it included those animals. I am not sure how the Minister will respond, but that is my interpretation.

Lord Whitty

The definition in the Bill has been used in previous legislation, such as the Dogs (Protection of Livestock) Act 1953. We see no reason to change it. Adding game birds or farmed deer seems to stretch the definition somewhat.

The Bill allows countryside bodies and local authorities to impose tighter restrictions where local circumstances demand them. Any extension to protect other species other than those traditionally described as "livestock" in legislation should be dealt with in that way.

The Earl of Caithness

The Minister relies on the 1953 Act, but I am sure that he agrees that farming has changed a lot since then. Of course it is useful to rely on a previous Act, but it is time to reconsider the issue, given recent rural diversification. It seems odd not to include deer farming in some upland areas, for example.

What happens if a farmer diversifies by breeding ostriches or deer? Does he have to appeal to the authority for a change in all the rules because he has a different form of livestock that is not covered by the 1953 Act? What happens if he has steers on his ground? There is a fine definition of cattle that does not include steers. Schedule 2 mentions restrictions on dogs, but we do not know what all the restrictions will be. People with dogs will not have a right of access to land that has bulls, cows, oxen, heifers and calves, but it looks as though they will have a right of access if there are steers about. The Bill needs tightening up.

Lord Whitty

I am sure that steers are covered by the term "cattle". The amendment does not cover ostriches. In some localities it may be necessary to extend protection to slightly more exotic species, but I do not think that the amendment is a sensible extension of the definition of livestock that has stood us in reasonably good stead and applies in by-laws throughout the country as well as in the Act to which I have referred. Special provision may be needed in some localities, but not in the Bill.

The Earl of Caithness

That is a useful reply, but how would a landlord, an owner or a tenant apply to have their livestock protected along with that covered by the 1953 Act?

Lord Whitty

If the livestock was in a different field or a different part of the property from traditional livestock, if I may call it that, the landlord would apply to the Countryside Agency for an additional restriction for the relevant area.

The Earl of Caithness

So it is the responsibility of a tenant who wants to farm any animals or birds that fall outside the definition of "livestock" to apply to the Countryside Agency for a revision of the maps and the access provisions?

Lord Whitty

No; only where it would involve a different parcel of land from that covered by the restrictions which arise as a result of this provision in relation to traditional livestock.

Baroness Byford

I support my noble friend's comments, particularly with regard to diversification within the farming fraternity. Although it is not the noble Lord's particular responsibility, he will be aware that farming is still in a dire situation, especially in the upland areas. Indeed, all farmers are being encouraged to diversify as much as they can. On looking at my amendment again, it occurs to me that one does not necessarily keep deer in fields; rather, I believe that they stray across access land. I shall certainly look at the matter again but, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 306: Page 25, line 19, leave out ("sub-paragraph") and insert ("definition").

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42 agreed to.

[Amendment No. 306A not moved.]

Schedule 4 [Minor and consequential amendments relating to Part I]:

Baroness Byford moved Amendment No. 307: Page 53, line 7, at end insert—


In section 1(2)(c) of the Dogs (Protection of Livestock) Act 1953 (penalty where dog worries livestock on agricultural land), for the words "(that is to say not on a lead or otherwise under close control) in a field where there are sheep" there is substituted "(that is to say not on a lead) in a field or enclosure where there is livestock".").

The noble Baroness said: In moving Amendment No. 307, I shall speak also to Amendments Nos. 308 and 309. The provisions of paragraphs 4 and 5 of Schedule 2 create anomalies in relation to the existing controls over dogs under the Dogs (Protection of Livestock) Act 1953. That Act was designed to tackle sheep-worrying by dogs and would not be overridden by the current Bill. That means that two separate regimes would exist for the control of dogs on different areas of land. I suggest that that would be confusing, both to farmers and users. The controls would differ, for example, between the enclosed in-bye pasture on the floor of a valley and the access land lying above it. Therefore, differences in the controls available would exist even on the same farm.

That is unhelpful, but the inconsistencies can be remedied by amending the definition of "worrying livestock" in the 1953 Act to make it consistent with the definition in this Bill. The amendment would bring the provisions of the 1953 Act more into line with those under this Bill, which require dogs to be on leads at all times when they are in the vicinity of any livestock. Without those changes, it would be difficult for the Countryside Agency and the CCW to give the public clear and unambiguous information about their responsibilities and the likely penalties if they fail to observe them, both in relation to access and non-access land.

The Dogs (Protection of Livestock) Act 1953 provides that an offence is committed by anyone whose dog is off the lead or otherwise not under close control when in a field or enclosure in which there are sheep. That offence should extend to include any situation, first, where a dog is not on a lead, thus removing the ambiguity about whether a dog off a lead can be said to be under close control, and, secondly, where a dog is in the vicinity of any livestock and not simply in a field or enclosure in which there are sheep.

I turn to Amendments Nos. 308 and 309. At present, the liability is attached to the owner or keeper of a dog that worries, kills or injures livestock under the Dogs (Protection of Livestock) Act 1953 and the Animals Act 1971. Further, a defence exists to a charge of criminal damage if an occupier shoots a dog which is attacking his sheep. That comes under the Criminal Damage Act 1971.

The Dogs (Protection of Livestock) Act 1953 places a criminal liability on an owner whose dog worries livestock. Essentially, under that Act if a dog worries livestock on agricultural land, its owner or minder is guilty of an offence. The definition of "livestock" covers bulls, cows, oxen, heifers, calves, sheep, goats, swine, horses, asses, mules, domestic fowl, turkeys, geese and ducks, but does not include the other types of animal mentioned by Members of the Committee.

The definition of "agricultural land" covers that used as arable, meadow or grazing land or, for the purposes of poultry farming, pig farming, markets gardens, allotments, nursery grounds or orchards. "Worrying livestock" means that a dog attacks or chases livestock or is at large—in other words, not on a lead or otherwise under close control—in a field or enclosure where there are sheep.

The Animals Act 1971 places a civil liability on a person whose dog may be worrying, killing or injuring livestock. The specific provisions within that Act are, first, Section 3, which provides strict liability for the keeper of a dog which causes damage by killing or injuring livestock, and, secondly, Section 9, which provides a defence against a civil action for killing or injuring a dog if it is for the protection of livestock.

Two difficulties arise: first, the definitions of "livestock" in the 1953 and 1971 Acts are inconsistent and there seems to be no logical basis for that; and, secondly, the regime is too narrow in scope to protect the legitimate interests of owners of access land. In particular, on much access land game birds are essentially a business asset. The birds are the very reason why that land holds its value. We debated that matter earlier. However, at present under the 1953 and 1971 Acts there is no protection for game birds as they do not fall within the definition of "livestock" as wild creatures.

My amendment applies to the 1953 Act in relation to access land and broadens the definition of "livestock" to include game birds. The amendment would provide consistency in the definition of "livestock", including game birds, under the Animals Act 1971. I beg to move.

4.45 p.m.

Earl Peel

Despite the anomalies to which my noble friend referred—about which she was absolutely right—I wish to refer to what was said by my noble friend Lord Caithness. Things have changed and I believe that perhaps it is time to reconsider the various Acts of Parliament covered by my noble friend's amendment.

When considering the definitions of "livestock", it seems to me peculiar that turkeys, geese, ducks and various other types of poultry fowl are defined and therefore receive protection under the various Acts of Parliament, yet game birds do not.

On the previous Committee day of this Bill, the noble Baroness, Lady Young of Old Scone, quite rightly drew the Committee's attention to the particular importance of grouse shooting to the maintenance of the heather uplands and its important economic base. I believe that it is time that such a hugely significant activity in the hills is recognised by proper legislation. Grouse shooting activities produce full-time, part-time and casual jobs and, as I have already mentioned, contribute to the maintenance of the environment. Therefore, in this day and age it seems extraordinary and quite illogical that sufficient protection is not given to game birds under the Dogs (Protection of Livestock) Act 1953 and the Animals Act 1971.

I hope that the Minister will look favourably on this amendment. I know that I am in danger of repeating myself but inevitably I come back to the words of the Minister, Mr Meacher, when he gave the commitment that nothing in the Bill would undermine the economic importance of those areas of land. This is quite a simple way for the Minister to redress what is clearly an illogical situation.

Lord Whitty

In Committee last week, we indicated that we were looking at bringing forward further restrictions on dogs. But these amendments are not the way to do it. Broader criminalisation and a wider ability to shoot dogs do not seem to me to be the appropriate way to go about this.

Amendment No. 397 seeks to amend the 1953 Act so that it becomes a criminal offence to fail to keep a dog on a lead in the vicinity of livestock on any land. We do not see any reason to impose new criminal sanctions on access land where there is no clear evidence of necessity. Even more importantly, I should not wish to use the Bill as a vehicle for amending other wider legislation which would have far-reaching implications for dog owners, not only on access land but also on rights of way in any public place and which is not, to my mind, supported by any clear evidence of a need.

The 1953 Act already makes it an offence for a dog owner to allow his dog actively to worry livestock. I recognise that there is a problem there. But Amendments Nos. 308 and 309 seek to criminalise the worrying of game birds by amending that Act and the 1971 Act. Amendment No. 309 would also provide a defence against civil action for a landowner who killed or injured a dog who was chasing game birds on his land. That, of course, is already the position when a dog worries sheep or cattle or any of the other species currently listed. However, while it may be generally reasonable to assume that a dog owner should be aware of the presence of the livestock and take appropriate action to control his dog, the same is not necessarily true of game birds. We have already, during the sensitive breeding and nesting seasons, provided a general restriction on dogs and, as I just indicated, we have agreed also to consider introducing stronger targeted controls on dogs to deal with particular problems.

In the consideration of introducing new criminal sanctions, it is important to bear in mind the scope of what we are seeking to achieve through the new right of access. That will be a relatively modest change for the purposes of quiet recreation on foot. We expect its impact, in general, to be limited. The increased sanction should therefore also be limited.

The main issue raised by the control of dogs is one of balance. The Bill, as it stands, provides protection for game birds in proportion to any potential disturbance. But we have agreed also to look at whether there should be any further extension of those restrictions. But criminalising any activity on land as a whole does not seem to be the appropriate way forward and I urge the noble Baroness not to pursue the amendment.

Earl Peel

Does the Minister not agree that it is somewhat illogical for it to be a criminal offence for a dog to worry a turkey or a duck and yet not if it worries a game bird which has considerably more economic value?

Lord Whitty

Not necessarily. It depends on the context in which the bird is found. It is difficult to assume that the same degree of control over dogs would be required in certain areas where game birds might be found at certain times of the year as it would when walking through agricultural land.

As I said, we have already imposed some restrictions on dogs in areas where game birds are to be found and we may wish to extend those restrictions. But we do not want to extend criminalisation and certainly we do not want to extend those provisions to land which is not access land and thereby infringe the rights of dog owners, who also have rights in general law.

Baroness Byford

I thank the Minister for his response. I return to the comments I made earlier this afternoon. We find ourselves in some difficulty because the Government intend to bring forward their own amendments to deal with the position in relation to dogs. But at the moment we do not know what those amendments are; we do not have them; and it makes this debate extremely difficult.

Following on from the intervention of my noble friend Lord Peel, I find a strange difference between the position in relation to a turkey, which is not a protected animal in any way—and one can breed turkeys ad lib—and that in relation to grouse or some of the rarer breeds. I should have thought that the noble Baroness, Lady Young, who is in her seat, would identify that it is more important to protect game birds than it is to protect turkeys and the other birds. I do not follow the Minister's argument in relation to that at all.

I may be misrepresenting him but he gave the impression to the Committee that landowners are going out in a rather gung-ho fashion and shooting dogs ad lib. I hope I misunderstand him about that. That is certainly not the intention. But when a dog worries sheep, the farmer has the right to deal with the dog. Therefore, I cannot see why the Government do not accept my arguments in regard to grouse and breeding birds. There is a difficulty in this Bill because one is trying to balance the rights of access and rights of way against trying to protect, conserve and preserve for the future. Perhaps we shall return to this at a later stage but, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 308 to 310 not moved.]

Schedule 4 agreed to.

Clause 43 [Redesignation of roads used as public paths]:

Lord Whitty moved Amendment No. 311: Page 26, line 29, leave out subsection (3).

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 317, 319, 357, 363, 414, 417, 418 and 451. We now move on to consider Part II, which contains provisions designed to improve and modernise the rights of way network in England and Wales.

These amendments bring all the definitions relating to Part II together in one place. They are technical amendments to a number of clauses which would improve the drafting of various definitions in Part II and consolidate most of them in a new interpretation clause which would then be inserted after Clause 65, avoiding duplication. These amendments, which delete various definitions, pave the way for the consolidation of definitions. I beg to move.

On Question, amendment agreed to.

Clause 43, as amended, agreed to.

Clause 44 [Restricted byway rights]:

Baroness Byford moved Amendment No. 312: Page 27, line 3, at end insert ("or only a public right of way on foot").

The noble Baroness said: This amendment deals with a power to downgrade restricted byways to footpaths. It aims to correct an anomaly in the legislation whereby a restricted byway can be upgraded to a byway open to all traffic—which we all refer to as a BOAT—if evidence is produced to show that vehicular rights exist, yet cannot be downgraded to a footpath if evidence is produced to show that no higher rights exist.

As it stands at present, Clause 44(1) creates restricted byway rights over roads used by public paths, which are called RUPPs and removes the need for their reclassification on a case-by-case basis. However, that is not the end. The clause allows for the route to be upgraded to a full BOAT or to be removed from the definitive map completely if it can be established that no public rights exist along that route.

At present the status of all other types of right of way can be challenged on the basis of historical or user evidence through the modification order procedure. That is not the case with restricted byways which are a creation of statute.

Somewhat arbitrarily, the Government have decided that restricted byways can be challenged on only two grounds: that they should exist and be a BOAT or that they are not public rights of way. However, other possibilities exist. In particular, restricted byways could in reality be footpaths and should be open to challenge on that basis too. In effect, restricted byway rights are being created over all footpaths and bridleways currently called RUPPs but there is no loss of any vehicular rights over such ways.

Surely a more equitable and balanced approach would be also to allow downgrading of the route if it was in reality only a footpath. The suggested amendment seeks to achieve that end. No bridleway rights would be lost. Indeed, many bridleways would be upgraded to restricted byways; RUPPs that are footpaths, however, would be preserved for the enjoyment of walkers rather than becoming new and additional routes for horses and carriages.

An additional issue raised by the creation of restricted byways is the lack of any provision for compensation for the owners of the ways affected. If a footpath is upgraded to a bridleway under a public path order, compensation is payable. In that case the Bill creates restricted vehicular rights for horses and carriages over all RUPPS and compensation should equally be payable. The Government need to explain and justify their approach. I beg to move.

5 p.m.

Lord McIntosh of Haringey

As the noble Baroness stated, the effect of Amendment No. 312 would be to prevent restricted byway rights from being created over a road used as a public path—which I, too, shall call a RUPP—if evidence were discovered that it carried only footpath rights.

That means that surveying authorities would be required, under their duty in Section 53 of the 1981 Act, not only to review restricted byways to see whether they could discover new, previously unconsidered evidence as to full vehicular status; they would also be required to look for new evidence of footpath status, just as they are required to keep under review the status of any highway on a definitive map.

In our view that would completely undermine the overall purpose of the Bill's provisions for replacing RUPPs with a new category of highway—that of restricted byway. The purpose of the provisions is twofold: first, to give more certainty for walkers, horse riders, cyclists and drivers of horse-drawn carriages than the present legislation by giving them express statutory rights to use restricted byways and in doing so open up the countryside to such recreational users. Secondly, it would reduce bureaucracy by relieving local authorities of their current duty to review the status of each RUPP individually and reclassify it as a footpath, bridleway or byway open to all traffic.

Under current legislation there is a presumption that a RUPP carries at least bridleway rights. We believe that it is reasonable to build on that presumption in creating restricted byway rights by statute. Landowners with new evidence that a RUPP is a footpath have had, since the provisions of the Wildlife and Countryside Act 1981 came into effect—nearly 20 years—the opportunity to apply to a surveying authority for a modification order.

Until commencement of Clause 43, they may still do so. The Bill provides the opportunity to make savings for any reclassification and modification orders which have not taken effect before commencement and for the extinguishment of any new rights created by the Bill if an order comes into effect. It would also allow for savings to be made in relation to applications for modification orders. We believe the time has come to reduce the uncertainty over the status of RUPPs, which was first addressed in the 1968 Act, and for Parliament to give the public the rights set out in Clause 44.

This exercise has less meaning the more caveats are introduced. That is why the creation of restricted byway rights is subject to the proviso in Clause 44(3) that a right of way needs to exist over the RUPPs in question. But, given the history of RUPPs and the current presumption of at least bridleway rights, we believe that it is reasonable now to close the book on further investigation of anything less than the rights for which Clause 44 provides.

The noble Baroness, Lady Byford, referred to the fact that compensation is payable if a bridleway is created over a footpath by order. She asked why it should not be payable if a restricted byway is created over a footpath. In the first instance, the way has never been considered as anything other than a footpath. However, if a definitive map shows a way as a RUPP, that is conclusive evidence that it carries at least bridleway rights.

Given all the factors—for example, that the addition of rights for non-mechanically propelled vehicles is not a substantial difference; that land owners have had a long time to claim RUPPs as footpaths and will be able to do so until commencement; and that it is our intention that private liability to maintain should be extinguished—we are satisfied that there is not any requirement for compensation.

On that basis, I hope that the noble Baroness will not press the amendment.

Baroness Byford

I thank the Minister for his response and accept what he says. I readily acknowledge that the Government will be seeking to make savings. However, it seems odd to have two different systems; that is, to be able to upgrade to a BOAT but not to be able to downgrade. That seems to be nonsense. However, I shall consider the matter again. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 313: Page 27, line 12, at end insert— ("( ) A highway at the side of a river, canal or other inland navigation is not excluded from the definition of "restricted byway" in subsection (4) merely because the public have a right to use the highway for purposes of navigation, if the highway would fall within that definition if the public had no such right over it.").

The noble Lord said: In moving Amendment No. 313, I shall speak also to Amendments Nos. 315, 320, 338, 339 and 449A. These are technical amendments relating to the Bill's provisions for redesignating roads used as public paths (RUPPs) as restricted byways.

The amendments concern RUPPs over which there are public rights of towage at the time of redesignation. The law is not entirely clear whether these rights are a species of right of way. The amendments would clarify the relationship between these rights and the specific rights conferred on restricted byways by the Bill.

Amendment No. 313 to Clause 44(4) provides that a RUPP is not prevented from being treated as a restricted byway merely because it carries public towpath rights. The amendment is based on Section 66(2) in the Wildlife and Countryside Act 1981, which is of the same effect in relation to footpaths, bridleways and byways open to all traffic.

Amendments Nos. 338 and 339 in Schedule 5 are similar to Amendment No. 313 but relate to Section 329 of the Highways Act 1980. It is necessary to ensure the same approach under this legislation. Otherwise, for example, some restricted byways could fall outside the provisions of that Act. Amendments Nos. 315 and 320 to Clauses 44(5) and 45(1) would ensure that any towpath rights or other public rights which are not rights of way but exist over a RUPP would not be extinguished on the RUPP's redesignation as a restricted byway.

Amendment No. 449A to Schedule 7 relates to Section 34 of the Road Traffic Act 1988 which makes it an offence to drive elsewhere than on a road. For the purposes of Section 34, the amendment would ensure that the definition of restricted byway is consistent with the footpath and bridleway in Section 192 of the 1988 Act in so far as these might also carry public rights of towage. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees

I must inform the Committee that if Amendment No. 314 is agreed to, I cannot call Amendment No. 315.

Lord Williams of Elvel moved Amendment No. 314: Page 27, line 13, leave out subsection (5).

The noble Lord said: I recognise that when we come to Part II of this Bill, we have a slightly new cast of characters. I am part of that new cast. I do not necessarily agree with the Government on all of Part I, and certainly do not agree with some of the amendments tabled by the Opposition on Part II. Nevertheless a major problem arises which I wish to flag in moving Amendment No. 314.

For the convenience of the Committee I should say that Amendment No. 316 is consequential and I shall therefore not bother with that. This is not an amendment for Division; it is a probing amendment to discover the views of the Committee on a matter of serious interest. Perhaps I should say also that I speak as somebody who has a house in mid-Wales and is vice-president of the Campaign for the Protection of Rural Wales.

Having said that, perhaps I can turn to the problem which my amendment addresses. The history to this matter is the problem of off-road driving by 4x4s—I am sure Members of the Committee understand that expression—and motorcycles. I shall return to this when we come to Schedule 7 and common land, as the noble Baroness, Lady Byford, will appreciate. But I am sorry that the noble Baroness did not agree to group her Amendment No. 360A, which roughly covers the same territory, with this amendment. I shall go briefly through the history because I do not want to detain the Committee.

It was clear from the Road Traffic Act 1988 that it was an offence to drive a motor vehicle on any footpath or bridleway. It was equally clear that, thanks to the Wildlife and Countryside Act 1981, roads used as public paths (RUPPs) should be reclassified in the definitive manner as either, byways open to all traffic", or as a bridleway or footpath. There was some confusion as to what "RUPP" meant. The Stevens judgment, followed by a further court judgment, led to the conclusion that "RUPPs" in practice are the same as bridleways. But the status of a RUPP does not mean that there are any additional rights beyond rights on foot and horseback.

What of the application of the law? Two problems arise. First, the magistrates have not enforced the law on bridleways on the ground that the prosecution of motorists or motorcycles driving on bridleways could not be sustained there was no "reasonable doubt" that there were no carriageway rights on the bridleway in question, whatever the definition might say. The Grimsell Lane case is the locus classicus on this and the magistrate in that case stated that the definitive map was not definitive. So nobody knows quite how the restriction of bridleways on a definitive map should be enforced. Some people say it should be the courts; some say it should be the Lord Chancellor; we simply do not know.

The second problem is that we now have RUPPs turned into restricted bridleways. But if bridleways are not protected by any reasonable judgment by the court, how can restricted bridleways, as defined in the Bill, be sustained? The failure of the courts to enforce what seem in the law to be clearly bridleways spills over into what appears to be the law in the Bill on restricted bridleways. Either they are or are not bridleways. I do not quite understand what the Government are aiming at.

The effect of this confusion, speaking from the Welsh perspective—I am sure the noble Earl, Lord Peel, will be able to enlarge on the English perspective—is that people do not know who is allowed to drive on what. It is not to be thought that this is a frivolous issue in the Welsh uplands in mid-Wales where I have a home. If the Government are not prepared to produce something rather better, then we have a case that we may wish to pursue. Nothing is worse than having confusion in the law, people not knowing where they stand and how we can control motorcycles and 4x4s driving across byways and so forth. Until the law is precise on this matter, there will be continuing debate. In that context, I hope that my noble friend will produce a constructive reply. I beg to move.

5.15 p.m.

Earl Peel

I support the noble Lord, Lord Williams of Elvel, and I added my name to the amendment. The noble Lord certainly represents, as he put it, a "new cast" on the Bill. But it is nice that a representative of the cast of Part I is also still here to add weight, I hope, to the arguments of the noble Lord on this amendment. There is no question of doubt. This is a serious issue and I can assure the Committee that it is just as serious in England as it is in Wales. I should therefore like to put my points in a slightly different way.

The Government's proposals in Clause 44 make an important advance in government policy. For the first time in the law relating to the definition of rights of way a clear distinction has been drawn between horse-drawn vehicles and other vehicles (or "mechanically propelled vehicles" as Clause 44 terms them). However, the value of that distinction is sorely limited by subsection (5) of Clause 44, as the noble Lord, Lord Williams, suggested, which provides for the reclassification of roads used as "RUPPs" as "restricted byways", without prejudice to any question of whether or not rights of way for mechanically propelled vehicles exist on them.

The failure to exclude vehicular rights over restricted byways means that there will continue to be uncertainty as to their exact status. The Government have continually expressed their desire to improve certainty about public rights of access, but fall short of their aspirations in this Bill. Moreover, the possibility that restricted byways could at any time in the future be upgraded to byways open to all traffic—that is, BOATs—t hereby confirming that they can be used by four-wheel drive vehicles or any other vehicle is a cause for real concern.

It is true that for many years landowners, conservationists and parish councillors have expressed concern at attempts to establish vehicular rights of way over routes recorded on definitive maps as bridleways or as roads used as public paths. The claims have often involved arguing that the routes should be reclassified as BOATs on the basis that at some dim and distant time in the past they may have been used by horsedrawn vehicles—a somewhat spurious argument, I suggest.

The concern arises not so much as regards the reclassifications but the possibility that, once reclassified, increasing use will be made of BOATs by motor vehicles, especially four-wheel drive vehicles and motor cycles. Those concerned fear the consequent loss of amenity to wildlife on these ways and there is clear evidence that that is happening in many parts of Great Britain. Of course, those ways become most unsightly, too. The people concerned know only too well that some irresponsible motor vehicle users like nothing better than to get vehicles bogged down in ruts so that they can winch themselves out. I am sure that it is a sport of great amusement! I have been in that position on a number of occasions—not deliberately—and know that it is a messy business. It requires winching out using trees and gateposts, which are then damaged. The arguments speak for themselves.

The end result of such abuse of public right—and it is just that—may be a BOAT which is impassable to all other legitimate users of the way, including walkers, cyclists, those in horsedrawn vehicles and land managers who use such ways to access their fields. Abuse of rights of access by a minority will have led to the complete loss of rights for everyone. Highway authorities may incur huge bills in repairing such ways to make them passable to all classes of user.

It is important that the creation of restricted byways under the Bill is reviewed in that wider context. By failing to exclude the possibility that the restricted byways could at some time in the future be upgraded to BOATs, the Government are keeping open the possibility that tens of thousands of miles of footpath could be subjected to abuse by vehicle users. I hope I have shown that the consequences include damage to the ways and denial of rights to others.

All those negative consequences could be avoided if the Bill were to make clear that any public rights for vehicles over restricted byways, over and above rights for horsedrawn carriages, were extinguished when the reclassification came into effect. Deleting subsection (5), as proposed in the amendment, would help but I suggest that it might be necessary to go even further to make it clear beyond doubt that restricted byways do not carry public rights of way for vehicles other than horsedrawn carriages.

I appreciate that some will argue that excluding the possibility of upgrading restricted byways to BOATs will mean that public rights of vehicular access will be lost on some of the ways. However, I believe that that loss needs to be balanced against the potential damage and costs arising from such ways if irresponsible vehicle users are able to gain rights of access to them.

There is also the fundamental argument, which I believe, that it is crazy to assert on the basis of historical evidence of use by horsedrawn carts and carriages that a right of way should be open to all vehicles without distinction. Now that the Government have taken the bold step—and it is a bold step—of distinguishing between horsedrawn vehicles and mechanically propelled vehicles, they should allow the change by denying mechanically propelled vehicles the right to use ways which when created can only ever have been intended for horsedrawn vehicles. That is the main part of my argument.

I hope that the Government will look seriously at the proposal. It is a serious problem which is likely to become worse. It will need tough action if we are to ensure that many bridleways are not further destroyed.

Lord Northbourne

As a walker, I want to confirm my extreme concern about the points raised by the noble Lord, Lord Williams. Bridleways and footpaths are incompatible with four-wheel vehicles and motor cycles. If footpaths are used by vehicles they lose their value entirely as regards walkers.

Baroness Thomas of Walliswood

We on these Benches are sympathetic to many of the ideas which have been put forward by the noble Lord, Lord Williams, and the noble Earl, Lord Peel. Clarity is of the utmost importance when dealing with footpaths, bridleways and BOATs. Anyone involved in local government will know that a great deal of time can be spent arguing about them.

As was said by the noble Earl, Lord Peel, in some ways the Bill is an improvement on the current situation, but the intention must be crystal clear. Otherwise, local government will be bogged down for years dealing with cases brought under the Act.

Secondly, we all sympathise with the difficulties expressed by various people in keeping four-wheel vehicles off byways. I, too, have experience of the delight which drivers of such vehicles take in reducing paths which are also open to horses to a quagmire. Riders cannot use them because they do not know the depth of the puddles and ruts. Those paths must then be repaired at the expense of the local authorities.

This is not a small issue—it has wide repercussions—and I hope that the Government will use the Bill to make their views plain.

The Lord Bishop of Hereford

I support what has been said by the noble Lord, Lord Williams, and the noble Earl, Lord Peel. Although I support the amendment, I agree that it does not go far enough. We need the extinguishing of any vehicular rights which could be used for mechanically propelled vehicles. We have had great problems with such vehicles in north Herefordshire where much damage and noise pollution have been caused. They have made the restricted byways, as they will become, unusable to those for whom they were intended.

I believed that the Government's intention behind the Bill was to achieve what has been proposed but I am not sure that the current provisions are adequate.

Lord Williamson of Horton

I am not sure whether the problem under discussion arises with this or Amendment No. 448A but we must recognise its importance and do what we can in the Bill to correct it. The current problem is simple; it was shown by the Grimsell Lane case and by a later case. The prosecution, who saw vehicles on bridleways, was unable to gain a decision in court because the defence raised doubts about whether there was a previous right to vehicular access. The prosecution could not prove a negative, which resulted in the magistrate stating: Dismissal of the charges does not in any sense establish that the route does indeed have vehicular rights. The question remains as open now as it was at the start of the case". Vehicles continued to drive over the bridleway and probably still do.

We must return to the issue during our debates on the Bill because the current law is an ass: people are driving four-wheel-drive vehicles on bridleways and nothing is being done about it. A number of such incidents are catalogued in the Derbyshire cases and others.

I do not know whether the issue arises under this or a later amendment when we must decide whether we remain satisfied with the words, prima facie evidence is adduced". However, we should not produce a result which is the exact opposite of what most people would consider reasonable, which is what we are doing.

5.30 p.m.

The Earl of Caithness

I support the arguments put forward by the noble Lord, Lord Williams, and my noble friend Lord Peel and do not repeat them. However, I invite the Minister's comment on the detail of Clause 44(5) in which the expression "animals of any description" is used. In Part I of the Bill one has a definition of "livestock" which appears in the Dogs (Protection of Livestock) Act 1953. Can the Minister explain why there are two definitions in the same Bill?

Baroness Byford

I also support the amendment moved by the noble Lord, Lord Williams of Elvel. I hope that when I come to speak to my amendment it will be clear why I have decided to split the two. The problem of four-by-fours, particularly on roads and pathways which were never intended for this purpose, is huge. Perhaps like other Members of the Committee, I have received correspondence from many groups and individuals who are concerned about a situation which this amendment attempts to clarify. It is not simply a matter of people not understanding what they can drive and where, but when they drive in areas where it would be much better not to drive they may at the same time spook horses and their riders and cause injury to both.

It is not a simple matter of saying that ideally the problem should be solved by x. I do not believe that the Government have fully addressed the difficulty. When the Minister responds perhaps he will indicate why local authorities have not responded to the problem more readily. I understand that as the law now stands local authorities can do more to control what goes on highways and footpaths, but action is not being taken. Can the Minister say whether there is evidence of that and, if so, why local authorities do not do more?

I declare an interest as a walker and former rider on certain footpaths and bridleways in the countryside. As other Members of the Committee have observed, it is difficult to decide whether to continue or to return to where one started. People tend to digress a little. Therefore, the pathway remains boggy and the local authority, whose responsibility it is to put it right, must deal not only with that but the extra area of land round about. Similarly, when a narrow pathway across a field becomes boggy, not by the use of four-by-fours but by general overuse, there is tendency—of which I am guilty—to continue but digress a little. People may make a slight detour in a farmer's field and at certain times of the year the corn is damaged.

No one has yet spoken up for those who drive four-by-fours or participate in this particular sport, which is not one of mine. They would be helped if the position is clarified. They are well aware that the Committee is considering this Bill and are concerned about the outcome from their point of view. It is not just a matter of seeking to resolve the problem but of clarifying the position for those who experience difficulties by the use of four-by-fours and those who participate in the sport and wish to know the outcome.

Lord Williams of Elvel

I wonder whether the Committee is to have a contribution from the Liberal Democrat Front Bench before my noble friend replies.

Baroness Miller of Chilthorne Domer

I thank the noble Lord, Lord Williams of Elvel, for inviting a comment from this Bench. I did not comment because I believed that the case had already been eloquently put by my noble friend Lady Thomas. My noble friend said that she spoke for both herself and the Liberal Democrats. We agree with the spirit behind the amendment, the point about bridleways and byways which are made unusable by the unreasonable use of four-by-fours and the need for clarification. My silence does not indicate that the Liberal Democrats do not support the amendment but that my noble friend puts the case well.

Lord Bridges

I do not generally seek to raise the temperature of our reasoned debates, but on this occasion I feel inclined to do so. I regard the present situation as insupportable and monstrous for the reasons already explained eloquently by others. The noble Baroness, Lady Byford, asked why local authorities had not done more. In my experience, the answer is simple: they do not have the resources to do so. I hope that the Government will use their influence to ensure that more money reaches local authorities to enable them to fulfil their responsibilities.

Another reason for what is wrong is that the law is an ass. For example, it is extraordinary that we have for so long allowed four-wheel drive vehicles to destroy the footpath by the Berkshire Downs. The Bill provides an opportunity to rectify this terrible situation, and I support the amendment.

The Lord Bishop of Hereford

Perhaps I may respond to the noble Baroness, Lady Byford. I pay tribute to Herefordshire Council. It has tried to take action over one particularly notorious case but it faces bitter, well financed and hard-fought opposition from motoring organisations. As the law now stands it is hardly surprising that local authorities are not keen to do it, but some try. As to the proper use of four-by-four vehicles, a private estate in Herefordshire has been used for the testing and demonstration of Land Rovers. People have had great fun, and it has been good for the industry. However, that takes place on private land and, happily, is the subject of agreement.

Lord Whitty

I appreciate the widespread concern in the Committee, and also the country, about this issue. The specific intent of the two amendments is to extinguish any motorised vehicular public rights over redesignated RUPPs. I am advised that there is doubt as to whether these amendments would achieve that.

Lord Williams of Elvel

To say that a proposed amendment is out of order, or whatever, is a well known technique used by Ministers. I deliberately said that this is a probing amendment. Can my noble friend skip the first paragraph of his brief and get on with the business?

Lord Whitty

No. The intention of the amendment is to extinguish rights. However, it does not say how one is to deal with pre-existing rights. We believe that that should be addressed in this context; and we may need to deal with it at some point in the Bill. If one accepts that the intention is to extinguish those rights, clearly the question is whether the public should be able to continue to drive motor vehicles on a RUPP where there are at present vehicular rights. That raises some difficult questions.

There is a good deal of concern about the number of motor vehicles being used inappropriately in the countryside, not only in mid-Wales. I experience it in the South West. I am sure that other Members of the Committee have experience of the problem of motorcycles and four-by-fours in other parts of the country, whenever they have time to stroll in the countryside at weekends. It is not the policy of the Government to seek to allow an extension of that activity but to restrict the inappropriate use of vehicles in that respect.

If one jumps to Clause 62, that extends the power of a local authority to make traffic regulation orders, for example to deal with conservation. That should be an additional tool in the armoury against unsuitable and damaging vehicular use and may in part give additional powers, for example to Herefordshire Council, to ensure that it can move more rapidly and substantively. We are also aware of difficulties in prosecuting offences. We shall debate amendments to strengthen the provisions when we come to Section 34 of the Road Traffic Act 1988 in Schedule 7. We are sympathetic to the objectives of the amendments to Schedule 7 and accept that there is a very good case for further strengthening Section 34. We hope to table amendments at Report stage in that area.

As to these two amendments, the purpose of introducing a new category of highway in place of RUPPs is two-fold.

Lord Williams of Elvel

My noble friend said that he was in favour of strengthening Section 34 of the Act. Can he indicate in what direction he intends to strengthen those powers by government amendments?

Lord Whitty

The provisions of Section 34 relate to presumption and the degree to which the presumption of pre-existing rights is perhaps loaded too heavily towards those who are claiming pre-existing rights. We are looking at ways to rebalance that in terms of those who wish to protect these bridleways and byways from vehicular traffic.

The original intention of changing the definition under the Bill was to give more certainty for walkers, horse riders and cyclists than the present legislation provides. It was also to reduce the amount of bureaucracy by relieving local authorities of their current duty to review the status of each RUPP individually and reclassify it is a footpath, bridleway or byway open to all traffic.

In the case of vehicles using these roads and claiming a pre-existing right the certainty is not absolute. Presumably my noble friend Lord Williams and the noble Earl, Lord Peel, hope that their amendment will make that clearer.But there would be a price. The Government have stated throughout the Bill that they do not wish to reduce existing rights to access. A blanket extinguishment of all public rights of way to drive mechanically propelled vehicles over RUPPs would interfere with that general commitment. We do not know how many RUPPs carry such rights, but certainly many do, both in terms of access to property and more generally. We do not know how important these rights are to local people and to visitors.

In due course, historic vehicular rights which exist over ways shown as restricted byways on definitive maps but which have to have been claimed will be extinguished under Clause 49 of the Bill after the 25-year cut-off date. That will provide time to research the evidence. In the mean time, we believe that people who have evidence of pre-existing vehicular rights should be able to claim them. As I have said in relation to amendments which may be forthcoming to Schedule 7, the balance of probability has to be addressed. That is simply claiming the right; it should not be actual proof of that right. In the case where a person does have proof of vehicular right, he is entitled to have, for example, a bridleway upgraded.

However, the Government are certainly not in the business of actively promoting motorised use of RUPPs however they are classified in the future. There is plenty of evidence that motorised vehicles and motor cycles damage the countryside and do damage to the ways. We need to give traffic authorities more powers to regulate that. We are actively looking at the case for so doing.

My noble friend Lord Williams explicitly referred to the case of Grimsell Lane. We shall be debating those amendments when we reach Schedule 7 and will respond positively to the amendments tabled.

The noble Earl, Lord Caithness, referred to the reference to animals in Clause 44. He is quite correct. The definition there is somewhat different from the definition of "livestock". It effectively reflects the rights of drovers. That is the definition that is used in the Wildlife and Countryside Act 1981—to protect the rights of driftway, as it is known. That is a somewhat different right and concerns a different range of animals from the normal definition of livestock. I hope that I have clarified the position. It is a negative clause rather than a positive one at that point within the Bill.

This is a difficult and somewhat complex issue. It is a conflict between trying to preserve existing rights of access—preserving the rights for people to access their homes and property—and the desecration of the countryside and the damaging effect caused to many byways by four-by-fours and motor cycles which interfere with the pleasure and the rights of enjoyment to these rights of way of many hundreds of walkers and horse riders up and down the country. We think that the balance is better struck later on in the Bill. Therefore, I hope that my noble friend Lord Williams and the other supporters of the amendment will not press it at this point.

5.45 p.m.

Earl Peel

The noble Lord said earlier that under the Bill additional powers had been given to local authorities to deal with road traffic incidents. The difficulty is that in so many of these cases it is actually very difficult to catch the individuals concerned. One can give the local authorities all the power in the world, but it will not actually achieve what most of us have spoken to and what the amendment seeks. The difficulty arises particularly with motorbikes. Many of those chaps know exactly where they are going and exactly what they are doing. They know they will not get caught because the police apparently will not get involved. If one wants to get the number plate off one of these vehicles, it is almost impossible because it is caked in mud. However one looks at the matter, powers are one issue, but how they will be used is quite another. Perhaps the Minister would address that matter.

Lord Whitty

That is undoubtedly true. But it would also be true if we were to pass the intention of the amendments. If we simply designated all redesignated RUPPs as closed to vehicular traffic it would still be an enforcement problem. Later on in the Bill in relation to Clause 62 there is an extension of the powers of local authorities to control, identify, sign and restrict access. That may involve some physical restriction of access which they do not at present have. The question of catching them is difficult whichever route one takes in trying to reduce this menace.

Lord Williams of Elvel

I am most grateful to my noble friend for responding fully to the points I made and indeed the points made by the noble Earl, Lord Peel, and others in the debate. I am grateful to others who have taken part.

I am sure my noble friend recognises that this is a really important issue in Wales, where I have a home, and, as the noble Earl, Lord Peel, said, in parts of England. It is not something that can be rushed away. We have to look to see what the Government produce before—I hope I can speak for the noble Earl—we both consider what amendments we might produce at the next stage of the Bill.

I can assure my noble friend that if the noble Earl, Lord Peel, and I agree on amendments to the Bill on Report, he will have a difficult time defending the Government's position. It is a matter that they have to take seriously. I hope that my own Whips are taking my remarks seriously. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 315: Page 27, line 14, leave out from first ("way") to end of line 15 and insert (", in addition to restricted byway rights, a right of way for mechanically propelled vehicles or any other right.").

The noble Lord said: I beg to move.

Baroness Byford

I wish to raise a technical point. The phrase "mechanically propelled" has concerned me. I know the Government are anxious that disabled people should have access to the countryside. I am concerned whether long-term the phrase "mechanically propelled" is the right terminology to use. I have not been able to find another word which is any better. It struck me that perhaps "mechanically propelled" will include some vehicles which it is not the Government's intention to include.

Lord McIntosh of Haringey

The noble Baroness raises a point that arises from the wording inserted by Amendment No. 315. She will find that the same wording—"mechanically propelled"—has been deleted. So there is no additional use of the words "mechanically propelled". However, I shall certainly find an opportunity as soon as I can to address her concern about the use of the phrase "mechanically propelled vehicles".

On Question, amendment agreed to.

[Amendment No. 316 not moved.]

Lord Whitty moved Amendment No. 317: Page 27, line 19, leave out from ("authority") to ("shall") in line 20.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendment No. 318: Page 27, line 23, leave out ("(3)") and insert ("(4)").

The noble Baroness said: With the permission of the Committee, I shall speak to the other government amendments in the group now and respond to the other amendments in the group after other noble Lords have spoken. In moving Amendment No. 318, I shall speak also to Amendments Nos. 554,557 and 560 to 562.

These amendments all relate to the commencement of Part II of the Bill. Amendment No. 318 to Clause 44 and Amendments Nos. 560 and 561 to Clause 77 are consequential on Amendment No. 557, the effect of which would be to give the National Assembly for Wales the power to make orders bringing Part II into effect in relation to Wales. Under the Bill as it currently stands, only the Secretary of State has the power to make commencement orders relating to Part II After discussion with the Assembly, the Government have accepted that the Assembly should have the power so far as concerns Wales.

Amendment No. 554 to Clause 77 deals with a different commencement issue. As the Bill is currently drafted, none of the provisions in Part II takes effect automatically two months after enactment. All depend on commencement orders being made. The reason for this is that implementation of many of the provisions depend on secondary legislation or statutory guidance being in place. That takes time to prepare and, where necessary, to be approved by Parliament. However, a number of provisions are not so dependent. They are Clauses 48, 54, 55, 60, 61, 62 and 63 and Schedule 7. We have concluded that commencement of those need not wait for orders to be made and Amendment No. 554 makes provision for them to take effect automatically two months after enactment.

Amendment No. 562 to Clause 78 relates to Clause 77(5). This latter provision already provides that commencement orders may appoint different days for different areas. Amendment No. 562 would provide clarity so that where a commencement date is fixed for one area "the commencement date" means that date in relation to that area and is not interpreted as meaning, for example, any earlier date that has been fixed for another area. That is to avoid ambiguity.

My noble friend skilfully anticipated the Government's intentions in respect of Clause 63 and Schedule 7. I hope that he will be willing not to press his amendments. In answer to his comment on an earlier amendment, I should like to place it on record that I for one, as a Government Whip, always listen carefully to everything said in debate by Members of your Lordships' House. I beg to move.

Lord Renton

Perhaps the Minister will be so helpful as to explain one small point. Amendment No. 562 refers to "that area". What area is contemplated? I have glanced at earlier provisions of the Bill to see whether there is a definition of "area", but I have not yet found one. Can the noble Baroness help me on that point?

Baroness Farrington of Ribbleton

To the best of my understanding, it is that area which is defined in order for the commencement to proceed. It will be defined by the access authority in terms of an appropriate division of the land. It is also particularly important with regard to the fast-track that may affect part of the geographical area and not other parts of the same geographical area or ownership of land. In other words, it is the area to which the commencement order applies.

Lord Renton

In each case the area will be described, but there is no general definition of an area in the Bill.

Baroness Farrington of Ribbleton

It will be the area to which the provisions of the Bill would apply. That is restricted by its very nature. Within that area it would be discrete and described parts of the area, particularly if there were to be a fast-track process which would apply to certain parts of the total area but not to others. If I have not made that clear to the noble Lord, the fault will be entirely mine. I shall, of course, write to him if he would find that helpful.

Lord Jopling

I have not been able to find in the Bill some of the matters which arise from the remarks of the noble Baroness a few moments ago. She said that it would be possible to have different commencement dates for different areas. She then said that the areas would be discrete. I should have thought that on different sides of a hill from a watershed one could have two different dates for two different adjoining pieces of land. I can see the sense of having that. She said that that was to avoid ambiguity. If two adjoining pieces of land or two separate pieces of land across a valley or a dale had different commencement dates, that could give rise to a certain degree of confusion. Do the Government accept that there could be a certain amount of confusion in the minds of the public who have not been through the Bill? They may have heard that there is one commencement date and imagine that that commencement date would apply to all the land in the area. How much notice of the commencement date will be given? What will the access authority do to publicise the commencement date? Will the date always be put in the local paper?

These are important matters. Until the noble Baroness spoke a few moments ago, I had imagined that the commencement dates would be the same for all areas. I can envisage people not understanding what she said, although I can understand the good sense of having the different commencement dates. It would be helpful if the noble Baroness could clarify that point.

6 p.m.

Baroness Farrington of Ribbleton

My noble friend Lord Williams of Elvel chided—I think rather gently—the Liberal Democrat Front Bench for not joining in the debate. Had all noble Lords been present for the whole of the previous part of the discussion—including very lengthy talks on the subjects of publicity and the process of such publicity—I believe that my noble friend might have been slightly more timid about provoking even more noble Lords to speak.

For the record, I should like to say that we held extremely detailed and lengthy debates on the process of publicity, and consultation on the means of publicity and the importance of that kind of process because it is necessary that the public should understand exactly what will apply to different areas. The publicity would surround and be a part of the process of producing a commencement order and would further define the area to which the commencement order applied. I am sure that the noble Lord is aware that, as a result of taking into account the real concerns expressed by those responsible for land management, many occasions will arise when different rules and restrictions will apply in different parts of the same area. That is because environment and land management requirements need to be taken into account. For that reason, the process of giving publicity to the detail as well as to the general provisions of the Bill is one that the Government fully recognise. I believe that those matters and the concerns expressed about them have been met in full today.

Lord Glentoran

I thank the noble Baroness for putting forward her explanations and arguments and I have no wish to return to many of the debates that we have held previously. However, perhaps the noble Baroness could give me some reassurance on one or two points. I understand that the fast track process is by no means set in stone and that the Government will come forward with their thoughts and suggestions at a later stage.

Perhaps I may return to a point that was raised earlier today; namely, the question of strategic plans forming a part of the process of ensuring that there is clear understanding. I am concerned that, on the day the Bill is passed and given Royal Assent, the world outside will believe that access is there for all. Can the noble Baroness give a reassurance—I shall give way to the noble Lord.

Lord McIntosh of Haringey

The last two interventions from the Conservative Benches have concerned Part I of the Bill. This has nothing to do with fast track procedures, mountain land or registered common land. This concerns the provisions covering the commencement of rights of way.

Lord Glentoran

I understand that, but I hope that the strategic plans, which will explain how the system is to work, will be put in place and will be helpful.

Baroness Miller of Chilthorne Domer

In case the position of the Liberal Democrat Front Bench is again misinterpreted, I should like to put on record the fact that we have remained silent at this point because we spoke at length on these issues when speaking to other amendments. Indeed, the Minister was kind enough to point that out. I do not wish to take up the time of the Committee by repeating myself.

Baroness Farrington of Ribbleton

On behalf of the Government, perhaps I may welcome that sentiment wholeheartedly.

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 319: Page 27, line 36, leave out subsection (9).

On Question, amendment agreed to.

Clause 44, as amended, agreed to.

Clause 45 [Provisions supplementary to ss. 43 and 44]:

Lord Whitty moved Amendment No. 320: Page 27, line 39, leave out from ("have") to ("shall") in line 40 and insert ("a right of way for mechanically propelled vehicles or any other right)").

On Question, amendment agreed to.

Clause 45, as amended, agreed to.

Clauses 46 and 47 agreed to.

Schedule 5 [Definitive maps and statements and restricted byways]:

Lord McIntosh of Haringey moved Amendment No. 321: Page 53, line 44, leave out from beginning to end of line I on page 54 and insert ("that the public have, and had immediately before the commencement of section 43 of the Countryside and Rights of Way Act 2000, a right of way for vehicular and all other kinds of traffic over that way.").

The noble Lord said: Amendment No. 321 amends Schedule 5 which relates to applications to have ways shown as restricted byways on definitive maps upgraded to a byway open to all traffic on the basis that full vehicular rights existed over the way in question. Before I move on from the matter of vehicular rights, perhaps I may say to the noble Baroness, Lady Byford—although she is not in her place I should like to make this comment for the record—that disabled carriages are expressly excluded from the definition of mechanically propelled vehicles in Section 34 of the Road Traffic Act 1988, covered in Schedule 7 to this Bill.

Schedule 5 amends Section 53 of the Wildlife and Countryside Act 1981 to enable such applications to be made; namely, applications to enable a restricted byway to be upgraded to a byway open to all traffic. However, as the Bill is currently drafted, it would be possible to apply on the basis of evidence that vehicular rights existed at any point in the past, even if such rights had been extinguished, provided that there was some public right of way over such ways. The amendment would ensure that this could not happen by requiring evidence that rights of way for vehicular and all other types of traffic existed immediately before the way was redesignated as a restricted byway and that the public continue to have such rights. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 322: Page 55, line 24, at end insert (", and (ii) if an order is made, a decision has been made to confirm or not to confirm the order,").

The noble Lord said: In speaking to Amendment No. 322, perhaps I may speak also to Amendments Nos. 323 to 333 and 548. These amendments all relate to definitive maps. These are the legal record of rights of way which provide conclusive evidence of the public rights of way over each highway which is shown on them. I shall deal first with the more substantial amendments.

Amendment No. 328 relates to the existing requirement for local authorities to keep their definitive maps on display to the public. After the cut-off date in Clause 52, certain rights of way which have not been recorded will be extinguished. The intention is that as much of the historic record as possible should be recorded, but disputes might arise after the cut-off date as to whether a particular right of way has been extinguished. We therefore consider it prudent to ensure that local authorities keep and make available to the public and other local authorities relevant documents about the status of rights of way at the cut-off date. Amendment No. 328 would give the Secretary of State or the National Assembly for Wales a power to make regulations for this purpose.

Amendment No. 333 aims to speed up the process of modifying definitive maps. First, it would enable the Secretary of State or the National Assembly for Wales, when directing a local authority to make an order on appeal under current legislation, to specify a deadline by which the order should be made. The current powers of direction do not allow a time period to be specified.

Secondly, the amendment would allow, in relation to hearings into disputed modification and reclassification orders, costs orders to be made and for witnesses to be summonsed. Currently, this can be done only in relation to inquiries. Hearings are less formal than inquiries and more suitable for some cases.

Thirdly, the amendment would enable the inspector holding an inquiry or a hearing to award costs. Currently, only the Secretary of State or the National Assembly for Wales may do so. This amendment is consistent with other provisions set out in Parts I, II and III of the Bill.

Finally, the amendment would enable costs to be awarded if an inquiry does not take place; for example, if one of the parties fails to turn up without good reason. Amendment No. 548 is consequential.

The remaining amendments are fairly technical. Amendment No. 322 concerns the requirement in Schedule 5 for local authorities to keep a register of applications for definitive map orders. The amendment would clarify the circumstances in which applications which have been dealt with are to be removed from the register.

Amendments Nos. 323 to 325 arise from Clause 43, under which roads used as public paths are to he treated as restricted byways. It may he that a RUPP has been diverted, stopped up or otherwise changed without an order modifying the definitive map having been made. The amendment would ensure that the conclusive effect of the map was subject to whatever legal changes had been made to the RUPP concerned prior to commencement and would be consistent with the approach adopted in Clause 44(2). It is designed to prevent a potential conflict arising between the map being conclusive of certain rights and the creation of restricted byway rights being subject, for example, to a diversion order.

Amendments Nos. 326 and 327 relate to provisions which enable local authorities to update their definitive maps to take account of accumulated orders. The amendments would prevent authorities producing new maps if they have failed in their duty to make orders modifying them. However, they would be able to make new maps if they have not reclassified all their RUPPs.

Finally, Amendments Nos. 329 to 332 relate to the new power in Schedule 5, which enables local authorities to consolidate their definitive maps to incorporate any parts of maps inherited from other authorities following local authority boundary changes. The amendments would clarify the intention that maps may not be consolidated if any orders required to record changes made to an authority's rights of way are outstanding. They would ensure that local authorities would be required to keep a copy of the superseded maps on display to the public. I beg to move.

Lord Renton

These somewhat technical amendments are important. They amplify and put into operation Clause 47—the shortest clause in the Bill, although an important one—which relates to the creation of the maps. Can the Minister explain what will be the net result of the amendments on the whole process of creating the maps, which could take years? On the other hand, if there is not much dispute, it could be done reasonably quickly.

A lot of painstaking effort and detail will be necessary. It would be helpful if the Minister could give some idea of the effect these amendments will have on the time or range of times—six months, six years; the longest time, the shortest time—that the process will take.

6.15 p.m.

Baroness Miller of Chilthorne Domer

These are so-called "technical amendments" which seek to improve the mapping process but which, in some ways, repeat the difficulties of the historical mapping process. For example, currently a large amount of money is being spent on the provision of cycle ways, and yet they are omitted from the process. I understand that it is intended to improve on the historical record, nevertheless cycle ways continue to be left very much in no man's land in the Bill. They are not on any record; they are not recognised as part of the process—and yet better provision for cyclists and equestrians was the first bullet point in the DETR's strategy for improving the rights of way network.

Although more money is rightly going into the creation of cycle ways, the way that they relate to the rest of the network is not defined. The Government have not been ambitious in trying to develop a mapping process which is all encompassing; it is still rather retrospective.

Lord McIntosh of Haringey

How long this will take is a very important and very difficult issue. The noble Lord, Lord Renton, will know that we are talking about the longest date being the cut-off date in Clause 52, which is 1st January 2026—in other words, 25 years from the presumed Royal Assent.

The amendments seek to remove some of the obstacles to delay within that period. But, as they are different amendments, I could not possibly give a single answer about the range of amendments in this group. That is not because we have not thought about it but because the procedures are not directly aimed at reducing the time taken. The hope is that they may do so by increasing the powers to award costs and by deterring frivolous objections and claims—that is important—but, because this is not the prime objective of the amendments, I cannot put a figure in terms of time on the savings that may be made.

As regards the noble Baroness's point about cycle tracks, they are expressly created and there should be no doubt about where they are. Definitive maps record rights of way which would otherwise be in doubt. My understanding is that cycle tracks are indicative in the sense that they advise that cyclists can, for various reasons and various purposes, go from A to B on a route without in any way changing or defining rights of way. They are not in themselves indicative of any change in a right of way or of what the right of way is. A cycle track, for example, could be partly on a restricted by-way and move seamlessly to being on a highway. The idea is to create a useful route rather than to define a right of way. That is the reason why cycle tracks are not included in the rights of way part of the Bill. We are not saying that we are not keen on cycle ways, as the noble Baroness, Lady Miller, made clear.

Lord Renton

I think the Minister referred to Clause 52 in his reply. Is that right?

Lord McIntosh of Haringey


Lord Renton

Clause 52 does not refer to Clause 47 and the creation of the definitive maps; it refers to Clauses 49 and 51. Clause 49 deals with the extinguishment of unrecorded rights of way and Clause 51 deals with bridleway rights over ways shown as bridleways. With great respect, neither of those clauses—nor, therefore, Clause 52—has anything to do with the time likely to be taken in creating the maps.

If I may say so, the noble Lord—as always—has taken a lot of trouble to master what he has to explain to the Committee, but I am rather surprised that no estimate has been made, either by Ministers or by officials, of the likely minimum and maximum periods for the creation of these maps.

It is very important. The Ramblers' Association and the landowners will be affected by it. The Ramblers' Association could be very disappointed if it takes too long.

Lord McIntosh of Haringey

My reference to the cutoff date in Clause 52 was simply that it was the cut-off date for extinguishment. The extinguishment process can take place only when all the other procedures, including those in Clause 47, have been completed.

The reason why we cannot give a minimum or a maximum is simple. A large part of the procedures are outwith the hands of government or of local authorities. They arise because there are opportunities for people to make claims, for the hearings or inquiries to be held and for appeals to be made; and all those depend on what other people do, not on what government do. That is, after all, the nature of our rule of law. I used the reference to Clause 62 merely to illustrate one of the needs for requiring local authorities to keep the documents available to the public.

Before concluding my remarks, I should say that I may slightly have misled the noble Baroness, Lady Miller. A cycle track is a specific kind of right of way but one that has been created deliberately and is, therefore, almost certain to be well signed and well understood. It is a more recent invention. In the rest of this part of the Bill we are dealing with rights that have existed back into the mists of time. That is why they are so difficult to deal with.

Lord Elton

Returning to the question asked by my noble friend Lord Renton, we have done something like this in the past, have we not? I remember that when I was chairman of a parish council in Leicestershire, some time between 1958 and 1961 we were required to record "purple routes" on the county map which was being drawn up as a statutory requirement so that there could be a national record of footpaths. Not without notice but at some point in the future, will the noble Lord let me know how long it took to complete that exercise—because I never heard of it being finished?

Lord McIntosh of Haringey

I can certainly let the noble Lord know that. I shall write to him on the subject, with a copy to the noble Lord, Lord Renton. But of course there are worse examples than that. We had reference in Part I to the Law of Property Act 1925, which defined urban commons, gave certain rights over them and allowed for certain procedures in defining them and in defining the rights. Those procedures have still not been completed after 75 years!

Lord Glentoran

Will the noble Lord give an assurance that, despite the many problems and trials and tribulations that there will be in putting these maps together, finance and money will not be one of them?

Lord McIntosh of Haringey

I think I can give that assurance.

On Question, amendment agreed to.

Baroness Scott of Needham Market moved Amendment No. 322A: Page 56, line 51, at end insert—

("Deletion of rights of way from definitive maps after the cut-off date.

54B.—(1) No order under this Part shall, after the cut-off date, he made under section 53(3)(c)(iii) so as to modify a definitive map and statement by the deletion of any way shown in the map and statement as a highway of any description at the cut-off date.

(2) In this section "the cut-off date" means, subject to regulations under subsection (3), 1st January 2026.

(3) The Secretary of State may make regulations—

  1. (a) substituting as the cut-off date later than the date specified in subsection (2) or for the time being substituted under this paragraph;
  2. (b) containing such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the operation of subsection (1), including in particular its operation in relation to—
    1. (i) an order under section 53(2) fin which on the cut-off date an application is pending,
    2. (ii) an order under this Part which on that date has been made but not confirmed,
    3. (iii) an order under this Part relating to any way as respects which such an order, or any provision of such an order, has after that date been to any extent quashed.

(4) Regulations under subsection (3)(a)—

  1. (a) may specify different dates for different areas; but
  2. (b) may not specify a date later than 1st January 2031, except as respects an area within subsection (5).

(5) An area is within this subsection if it is in—

  1. (a) the Isles of Scilly, or
  2. (b) an area which, at any time before the repeal by section 73 of this Act of sections 27 to 34 of the 1949 Act—
    1. (i) was excluded from the operation of those sections by virtue of any provision of the 1949 Act, or
    2. (ii) would have been so excluded but for a resolution having effect under section 35(2) of that Act.

(6) Where by virtue of regulations under subsection (3) there are different cut-off dates for areas into which different parts of any way extend, the cut-off date in relation to that way is the later or latest of those dates.

(7) Where it appears to the Secretary of State that any provision of this Part can by virtue of subsection (1) have no further application he may by order make such amendments or repeals in this Part as appear to him to be, in consequence, necessary or expedient.

(8) An order or regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 357A which is grouped with it.

Summing up in a right of way case, Lord Denning once said that nothing excites an Englishman so much as a footpath. I have always thought that his remark did not say much for English women and spoke volumes for English men.

I was interested to hear the Minister say in his introductory remarks that Part II of the Bill was designed to modernise the rights of way system. Perhaps in his reply he will explain how.

Amendment No. 322A addresses the issue of deletions from the definitive map. The situation at present is that any landowner can seek to delete a path on the grounds that that particular right of way was originally put on to the map in error. In practice, that means re-opening arguments which in some cases were thought to have been settled 40 or more years ago. The cases are very difficult because much of the original survey work has disappeared, as, sadly, have the people who carried it out. It is not uncommon to find protagonists arguing over fragments of parish council records in order to establish the claim. I am told that that is becoming an increasingly frequent way of deleting paths from the definitive map. The Bill as drafted is silent on the question of such deletions. Our amendment seeks to remove that right of challenge after the cut-off date of 2026.

There is a question of natural justice here. If user groups and local authorities are having to work hard to research and establish rights before the judgment day, it is only right that landowners should have the same period of time in which to show that they think that rights do not exist. The effect of the amendment would be to strengthen the conclusiveness of the definitive map—something which I believe we all seek to do.

Amendment No. 357A addresses the issue of claims for new rights of way coming into existence between 1st January 1949 and the cut-off date of 2026 proposed in the Bill. Such a claim could come about as a result of showing a period of use during those years and then using either common law or the Highways Act 1980 to establish presumed dedication as a public right of way.

In such a situation it is quite likely that objectors to any claim would argue that a particular route was being used as a right of way before 1949 and, therefore, under the provisions of this Bill was automatically extinguished. Bizarrely, we could see a complete reversal of the current roles. Into the future, landowners will be trying to show that there was use by the public as of right before 1949 and claimants will be trying to demonstrate that there was not.

I am concerned anyway about the establishment of a cut-off date in order to extinguish old and possibly little used rights. But it is even worse to see this being used as a justification for extinguishing rights which demonstrably are being used.

The walking public are in a "lose-lose" situation under the terms of the Bill. Ancient rights which are infrequently used precisely because they are not recorded will be lost for ever; and after the cut-off date routes which are in use but where perhaps there has been some question and it is lost in the mists of time could also be lost by the use of the cut-off provision.

If this amendment is agreed to, routes with a record of use during the most recent three-quarters of a century would at least be judged on their merits and not be lost by default by use of the cut-off date. I beg to move.

Lord McIntosh of Haringey

I have a horribly long answer to this amendment and I do not know how to cut it down and still do justice to the argument advanced by the noble Baroness, Lady Scott. Before I reply, perhaps I may respond to her initial challenge: how does the Bill clarify rights?

There are probably 20 or 30 different answers, but the fundamental answer lies in the creation of restricted byway status, which I believe is clear and which subsumes a number of previous categories, none of which was clear or which was dependent on historical status rather than the present status. That is almost a subject for philosophical debate rather than the consideration of individual amendments. I believe that the Bill in Part II not only seeks to achieve greater clarity but does in fact achieve it— although I am the first to confess that the wording does not encourage that view.

A number of amendments have been tabled relating to the provisions for setting a cut-off date for the recording of certain rights of way and the extinguishment thereafter of any which are not recorded. What the noble Baroness, Lady Scott, is attempting to do—she calls it "natural justice"—is to provide a quid pro quo for the loss of any rights of way on the cut-off date by preventing any which have been recorded in error from being deleted. I hope I have got that right.

Baroness Scott of Needham Market

I thank the Minister for giving way. What I am trying to establish is that someone who seeks to delete a path by reference to its use before 1949 would have to show beyond doubt that the public were not using it as of right and that there was an error.

Lord McIntosh of Haringey

The purpose here is a change in the onus of the burden of proof. I am not sure that I fully understood that before, and I am not entirely sure that that is what the amendment says.

Of course there is some attraction in the argument that if the public will be unable to submit evidence as to the existence of rights of way after the cut-off date, then there should also be a bar on applications seeking to remove rights of way. I note that Amendment No. 322A would apply only in respect of rights of way shown on a map at the cut-off date so that it would be possible to correct errors which arose after that date. I also note that it would apply to all rights of way, irrespective of when they were created, whereas the extinguishment provisions apply only to unrecorded footpaths and bridleways created before 1st January 1949 and to any unrecorded pre-1949 higher rights over ways which are shown on a map at the cut-off date. The amendment does not say anything about whether the highways can be downgraded or upgraded. The Bill also provides certain exceptions to the extinguishment rule, as the amendment does. The amendment therefore goes much wider than the provisions which it seeks to counterbalance.

We have looked at the general principle behind the amendments and are not unsympathetic to it. However, there are a number of difficulties involved. We must remember that definitive maps do not create highways from scratch: they merely record what exists—whether it is the effect of an express creation, diversion or closure by statute or agreement, or by other means.

Merely preventing the deletion of a right of way that has been recorded in error will not change the status of the land in question. If no highway exists but the map continues to show one, the only consequence will be a map that is wrong. That will not benefit anyone. To avoid that situation, it would be necessary to make express provision for a right of way to be created over the land. But, again, the amendment does not provide for that; indeed, even if it did, there would be problems.

A major concern is how one would identify the lines of the newly-created highway on the ground. That could be easily distinguishable from the definitive map and statement. But the scale at which definitive maps are drawn, particularly the old ones, is not always enough to show the line of a right of way so as to be able to relate it to features on the ground with enough accuracy. The maps are certainly not capable of being used to establish the width of a right of way and, therefore, the extent of the land covered by it; nor is the information always shown in the supporting statement. However, if a right of way is created by order, the land is surveyed and plotted on a map, usually on a scale that provides a reasonable indication of its line. To avoid any doubt, orders also contain additional information to assist identification on the ground.

Definitive maps and statements do not always provide the same amount of information. Where a highway exists, if there is a dispute over its position, the parties can always go back to the original documents or evidence on which the highway was recorded and draw upon the various rules that the common law has established. But if errors were made, or if subsequent evidence showed that no highway existed, any previous evidence would be irrelevant—I warned noble Lords that this was a complicated matter!

The Government have taken special care to ensure that the provisions are practical and workable. We have taken expert advice from the Ordnance Survey, which has taken the view that the scale and accuracy of depiction of rights of way on definitive maps, which would he the only basis for creating a highway, creates fundamental problems when trying accurately to re-create the position of a right of way on the ground. In most cases it would not be possible to re-create the position to better than 10 to 15 metres, if one only had the information on a definitive map. Land disputes can arise over far less than that.

Our conclusion is that this would not be a workable provision and we are reluctant to pursue it. However, we have made some provision in the Bill to counter the extinguishment provisions. Clause 51 provides that where a footpath is wrongly shown on a definitive map as a bridleway on commencement of the section and remains wrongly recorded until the cut-off date, bridleway rights shall be created over it. We do not believe the same difficulties arise here because no new highway is being created from scratch. The only issue is what rights exist over it.

Amendment No. 357A, which relates to the cut-off date, seeks to introduce safeguards for footpaths and bridleways created by public use, or deemed dedication. The first element relates specifically to Clause 49, which provides that any footpaths or bridleways that were created before 1st January 1949 and which have not been recorded on a definitive map at the cut-off date, shall be extinguished. It would apply to all cases where the period of public use ended after 1st January 1949. However, for the purposes of the cut-off date, it is relevant only to those where the period of use also began before 1st January 1949.

In relation to ways where the period of use began before 1st January 1949 and continued afterwards, then, solely for the purpose of Clause 49, the amendment would provide that the way should be deemed not to have existed before 1st January 1949. That is irrespective of whether public use of the way before that date was sufficient to establish that a right of way existed. So even though a highway did in fact exist before 1949, it would, under the amendment, be deemed not to have existed for the purposes of Clause 49.

The second part of the amendment would widen the basis on which Section 31 of the Highways Act operates. Where the public have used a way for 20 years without interruption (and in the absence of evidence to the contrary), Section 31 provides, broadly speaking, that the way is deemed to have been dedicated as a public right of way. The 20-year period is calculated retrospectively from the date when the use is brought into question. The effect of the second element of Amendment No. 357A would be to enable applications to be made on the basis of Section 31 irrespective of whether there had been a challenge. That would apply to all such applications, including those where the period of use began after 1st January 1949 and to which the cut-off date does not apply.

The first part of the amendment would effectively move the goal posts because it would enable the continued recording after the cut-off date of footpaths and bridleways created by deemed dedication before 1949. The Government believe that having a single date applying to all footpaths and bridleways is an important starting point to defining which ways are subject to the cut-off date provisions and which are not. The key purpose of these provisions is to encourage completion of the historic record of rights of way and to provide reasonable certainty to landowners and to the general public. I say that in the hope that it will avoid further questions from the noble Lord, Lord Elton. Those aims are undermined from the very beginning if we start to qualify the definition of what should be regarded as "historic" for the purposes of these provisions.

However, we accept that Clause 49 needs to be qualified in certain circumstances. Clause 50 sets out certain exceptions; for example, footpaths and bridleways at the side of highways that are carriageways. We do not want to extinguish footpaths which, in practice, serve as pavements. There are several other safeguards, including a power for the Secretary of State or the National Assembly for Wales to make regulations exempting other footpaths and bridleways. All those safeguards are described in the Explanatory Notes to the Bill.

In addition, Clause 50 enables regulations to be made extending the cut-off date for a maximum of five years in areas where the duty to record definitive maps has been in place since the 1949 Act. In other areas—for example, those where definitive maps were only first required by the Wildlife and Countryside Act 1981—there is no upper limit to extending the cut-off date. These are predominantly urban areas. There has been concern that many footpaths and bridleways in such areas will not be recorded in time, especially as local authorities in such areas have not had as long to record their rights of way.

It is a difficult task to remove rights of way from the definitive map. One needs to produce new evidence, which was not previously considered by the surveying authority. That evidence must also be cogent, given the conclusive evidential effect where a highway exists. I do not expect the noble Baroness, Lady Scott, to respond to the degree of detail contained in my response. However, when she reads my reply in Hansard, I hope that she will realise that we have provided the right sort of provision for natural justice and that her amendment would go too far.

6.30 p.m.

Baroness Carnegy of Lour

One's hair stands on end at the thought of the amount of work that will have to go into all this. But, at the end of the day, does the Minister think that people who want to walk along footpaths, bridleways and other highways will have more, or less, opportunity to do so?

Lord McIntosh of Haringey

I do not believe that there is a single answer to that question. People will know what their rights are more clearly. I believe that to be the truth of the matter. As to whether there is more or less opportunity for them, that will depend upon adding together a whole number of judgments regarding individual cases. Walkers will make their claims as will landowners; indeed, there may also be counter-claims in both cases. It is not for me to predict the balance between the two. We would, of course, like the legislation to provide more scope for walkers, but we cannot guarantee that.

Baroness Byford

I, too, should like to comment on these amendments. I accept what the noble Lord has just said. Certainly, from our point of view, anything that brings a degree of certainty to the issue—indeed, the position is still very uncertain, unless we follow the line that the Government are taking—must be an improvement. However, I had not read into the amendment the fact that the intention was to put the burden of proof back into the equation. I thought that we were taking the date in the amendment as "the cut-off date" and that anything that had not been on the definitive map prior to that would simply not be there.

I certainly cannot comment on the Minister's good but rather long explanation. I shall read his response, but I believe that any measure that brings certainty will be welcomed by walkers and by those who own and manage the land in question. If the position is uncertain, that is a nightmare. We need to consider the matter further rather than accept the position as it stands at present. I hope that the noble Baroness will not press the amendment.

Lord McIntosh of Haringey

I wish to comment further on the point made by the noble Baroness, Lady Carnegy. Clauses 59 and 60 contain much improved provisions for removing obstructions from rights of way. That should be an encouragement for walkers.

Baroness Scott of Needham Market

I am grateful for the Minister's response which I shall read in Hansard with great interest and with a hot towel on my head! There are some key issues involved here. The noble Baroness, Lady Carnegy, reached the heart of the matter when she asked whether walkers would have more or fewer opportunities to roam. I suggest that it is a little disingenuous to say that the removal of obstructions is a major advantage. Clearly, that will be welcomed by walkers, but they have every right to expect to use public rights of way without their being obstructed. I am talking about the creation or deletion of public rights of way. The concern I have about the whole tenor of Part II is that the balance is tipped to make it easier for rights of way to be removed rather than created.

In lowland arable areas, such as Suffolk where I come from, there will be little new access provision under Part I. We rely on the public rights of way network for access to the countryside. I am keen to ensure that there is no loss of access. My noble friend Lady Miller will return to that issue.

Baroness Byford

Before the noble Baroness sits down, I should add that I, too, have links with Suffolk where my family's farm is situated. It has public rights of way. New pathways are being established through the various countryside schemes which are too many to mention. Certainly my family is negotiating new pathways on our land. I hope that the noble Baroness will not assume that because the Government are talking about old pathways that are perhaps not recorded, new pathways will not be made available. As I declared earlier, our land is not access land, but it has pathways across it and we are trying to negotiate more. I am sure that is the right way forward. I should hate the noble Baroness to think that there is only one way forward and that there will be no more pathways in the future. I believe that there certainly will be more pathways.

Baroness Scott of Needham Market

I am grateful for those comments. I do not wish to downplay the kind of agreements that the noble Baroness mentioned. They are indeed valuable but, sadly, they are not as numerous as we might hope. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendments Nos. 323 to 333: Page 57, line 18, after ("byway"") insert— ("( ) after "the map shall" there is inserted ", subject to subsection (2A),","). Page 57, line 35, at end insert ("—

(a) subsection (1)(d) and (e) have effect subject to the operation of any enactment or instrument, and to any other event, whereby a way shown on the map as a restricted byway has, on or before that date—

  1. (i) been authorised to be stopped up, diverted or widened, or
  2. (ii) become a public path, and

(b)") Page 57, line 36, leave out from ("way") to ("with") in line 37 and insert ("so shown"). Page 58, leave out lines 2 and 3. Page 58, line 5, at end insert— ("(2A) After that subsection there is inserted— (3A) Where as respects any definitive map and statement the requirements of section 53(2), and of section 55 so far as it applies, have been complied with, the map and statement are to be regarded for the purposes of subsection (3) as having been modified in accordance with the foregoing provisions of this Part whether or not, as respects the map and statement, the requirements of section 54 have been complied with."").

Page 58, line 20, at end insert— ("(6C) Regulations made by the Secretary of State may require any surveying authority—

  1. (a) to keep such other documents as may be prescribed by the regulations available for inspection at such times and places and in such manner as may be so prescribed, or
  2. (b) to provide to any other surveying authority any document so prescribed which that authority is, by regulations under paragraph (a), required to keep available for inspection."").

Page 58, line 22, leave out from ("Where") to ("area") in line 25 and insert—

  1. ("(a) different definitive maps and statements relate to different parts of a surveying authority's area,
  2. (b) as respects so much of each definitive map and statement as relates to that area the requirements of section 53(2), and of section 55 so far as it applies, have been complied with, and
  3. (c) there is no part of that").
Page 58, leave out lines 34 to 39 and insert— ("(2) The power conferred by subsection (1) is not exercisable by a surveying authority if the definitive map and statement relating to any part of the authority's area is"). Page 58, line 45, leave out ("Subject to subsection (2),"). Page 59, leave out lines 1 to 25. Page 59, line 33, at end insert— (" . In Schedule 14 to that Act (applications for certain orders under Part III), in paragraph 4(2) at the end there is inserted "(which may include a direction as to the time within which an order is to be made)". In Schedule 15 to that Act (procedure in connection with certain orders), paragraph 9 is omitted and after paragraph 10 there is inserted—

"Hearings and local inquiries

10A.—(1) Subject to sub-paragraph (2), subsections (2) to (5) of section 250 of the Local Government Act 1972 (giving of evidence at, and defraying of costs of, inquiries) shall apply in relation to any hearing or local inquiry held under paragraph 7 or 8 as they apply in relation to a local inquiry which a Minister causes to be held under subsection (1) of that section.

(2) In its application to a hearing or inquiry held under paragraph 7 or 8 by a person appointed under paragraph 10(1), subsection (5) of that section shall have effect as if the reference to the Minister causing the inquiry to be held were a reference to the person so appointed or the Secretary of State.

(3) Section 322A of the Town and Country Planning Act 1990 (orders as to costs where no hearing or inquiry takes place) shall apply in relation to a hearing or local inquiry under paragraph 7 or 8 as it applies in relation to a hearing or local inquiry for the purposes referred to in that section.".").

On Question, amendments agreed to.

6.45 p.m.

Baroness Farrington of Ribbleton moved Amendment No. 334: Page 60, line 3, leave out from beginning to (""restricted") in line 7 and insert—

("11.—(1) Section 57 of that Act (penalty for displaying on footpaths notices deterring public use) is amended as follows.

(2) In subsection (1), for "road used as a public path" there is substituted "restricted byway".

(3) In subsection (3), for "or road used as a public path" there is substituted "restricted byway or byway open to all traffic".

(4) After that subsection there is inserted—

"(4) In this section—

"byway open to all traffic" has the same meaning as in Part III of the Wildlife and Countryside Act 1981;"").

The noble Baroness said: This amendment is technical. It relates to Section 57 of the National Parks and Access to the Countryside Act 1949 which makes it an offence to display a notice deterring public use of a way shown on a definitive map as a footpath, bridleway or road used as a public path. Highway authorities are under a duty to enforce this offence.

Schedule 5 currently amends Section 57 in consequence of the redesignation of roads used as public paths (RUPPs) as restricted byways. However, under the current wording there is some doubt whether the offence would be enforceable in respect of a restricted byway which carried full vehicular rights and was, therefore, a byway open to all traffic. A consequence is that the Bill could make the offence unenforceable in circumstances in which it may presently be enforced. We do not want to weaken Section 57, and Amendment No. 334 would ensure that the status quo is maintained. I beg to move.

On Question, amendment agreed to.

Baroness Byford moved Amendment No. 335: Page 60, line 15, at end insert— (" . After section 56 of the 1980 Act there is inserted—

"Instance where order is not made.

56A. No order shall be made under the preceding section if the respondent satisfies the court that the fact that the way to be maintained is a highway within section 56(1) above is seriously disputed."").

The noble Baroness said: This amendment concerns the whole question of asserting public rights. Highway authorities are under a duty to maintain highways which are publicly maintainable. This duty therefore also applies to public rights of way. It can be the case, for whatever reason, that local authorities do not adequately carry out their duties, by allowing rights of way to become overgrown or impassable, and in effect obstructing the use of rights of way.

This duty can be enforced by any member of the public where it is felt that the authorities are not carrying out their obligations under Section 56 of the Highways Act 1980. At present, Section 56 powers are being abused. Applicants are using the procedure to force highway authorities to maintain routes where the public status of that route is at issue. The user might argue that it is a public right of way; the owner might argue that it is merely a private track or permitted estate path.

In effect, the Section 56 procedure is being used to ascertain the status of a path and to side-step the definitive map order procedure, where all the evidence can be examined and the landowner and other interested parties have the standing to be heard. This is a back-door method of asserting public rights. Even if the path is repaired by the authority, it may not subsequently be added to the definitive map, prolonging uncertainty for all. We have just discussed uncertainty on a previous amendment.

The potential for the same problem has been recognised in what will be new Section 130B(4) and (5) of the Highways Act 1980. Sensibly a provision has been included whereby a highway authority is removed from an obligation to remove obstructions if the public status of the way is at issue. In particular, what will be new Section 130B(5)(a) provides that no order shall be made by a highway authority if it satisfies the court that the fact that the obstructed way is a highway is "seriously disputed".

The amendment would apply the same constraint to Section 56 of the 1980 Act, preventing further abuse of the current procedure. Taking this action would provide further strong evidence of the Government's serious aim of securing complete and accurate definitive maps. Consideration should also be given to the merits of applying to Section 56 the parallel constraints provided by new Section 130B(5)(b) and(c). I beg to move.

Lord McIntosh of Haringey

Amendment No. 335 would prevent an order being made under Section 56 of the Highways Act 1980 if the person alleged to be responsible for maintaining the way in question satisfies the court that there is a serious dispute as to whether it is a highway. The noble Baroness, Lady Byford, prayed in aid the provisions in Clause 59 of the Bill—that is, new Section 130B(4) and (5).

The two provisions are substantially different. Clause 59 is concerned with the enforcement of the general duty on highway authorities under Section 130 of the 1980 Act to prevent, as far as possible, the rights of way for which they are responsible from being obstructed. The courts have held that the duty under Section 130 applies only if there is no serious dispute that the particular way is a highway. I refer to R v Lancashire County Council, ex parte Guyer [1980]. That is why Clause 59 prevents the magistrates' court making an order if it is persuaded that there is a serious dispute as to the status of a way. On the other hand, Section 56 provides a means for deciding the issue of whether a way is a highway. Under Section 56 such cases go straight to the Crown Court for resolution and the enforcement of the duty to repair is not conditional on there not being a dispute about the status of the way. I am sorry about the double negative but the enforcement is not conditional on there not being a dispute. The amendment would not remove the provision for applications to be made to the Crown Court but would simply prevent the court from doing a job which Section 56 specifically assigns to it.

The noble Baroness, Lady Byford, said that people use Section 56 to bypass definitive map procedures. Definitive maps were not conceived of as the exclusive route to establish the existence or non-existence of a highway. They are not conclusive of what is not shown in them and individuals, for example, are still entitled to apply for a declaration as to the existence of a highway.

Section 56 is different from Clause 59 in a number of ways. Orders made by the court under Section 56 are against whoever has a maintenance responsibility. It could be the highway authority or a private individual. The order is made against whoever is responsible for a highway being out of repair. However, orders under Clause 59 are not made against whoever is responsible. They are made against the highway authority—the purpose being to get the authority to do its job properly and perform its duty.

I hope that the noble Baroness will not press the amendment.

Baroness Byford

I thank the Minister for his response. If repair is needed to a path and the user persuades the highway authority to do that repair, does the noble Lord accept that there is greater force behind the argument to establish that there is a right of way than if the highway authority had not undertaken the work in the first place?

Lord McIntosh of Haringey

I do not think that that is necessarily the case. If repair is undertaken it is more likely that the walker, or whoever, will use the path. If that affects the status of the right of way, indirectly it affects the outcome. But I do not think the fact of the repair being undertaken of itself affects the situation.

Baroness Byford

I thank the Minister for his response. I should like to consider the matter further. I think that there is an inference of undue pressure. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 335A: Page 60, line 15, at end insert— (" . In section 31(6) of the Highways Act 1980 (dedication of way as a highway presumed after public use of 20 years)—

  1. (a) for "a statement indicating" there is substituted "a statutory declaration indicating";
  2. (b) after "been dedicated as highways" there is inserted "and to the effect that he has no intention of dedicating any additional way over the land as a highway";
  3. 73
  4. (c) for ", in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time—
    1. (i) within six years from the date of the deposit, or
    2. (ii) within six years from the date on which any previous declaration was last lodged under this section, to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are," there is substituted "such a deposit is,".
  5. (d) "or his successors in title" is omitted.

After section 31(6) of the 1980 Act there is inserted—

  1. "(6A) Every surveying authority shall keep, in such a manner as may be prescribed, a register containing such information as may be prescribed with respect to deposits lodged under section 31(6).
  2. (6B) The register shall contain such information as may be prescribed with respect to the manner in which such deposits have been lodged and dealt with.
  3. (6C) Regulations may make provision for a specified part of the register to contain copies of deposits.
  4. (6D) Every register kept under this section shall be available for inspection free of charge at all reasonable hours.
  5. (6E) In this section—

and a statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament."").

The noble Baroness said: The amendment deals with dedication. Deemed dedication in relation to public rights of way is where under common law it is presumed that at some time in the past a landowner has dedicated the way to the public, either expressly, the evidence of the dedication since being lost, or impliedly by making no objection to the use of the way by the public. Due to the uncertainty as to what period of time must have lapsed before this dedication can be sufficiently assumed, legislative measures have provided various tests to establish whether or not presumed dedication has taken place. The latest provisions are contained in Section 31 of the Highways Act 1980.

Broadly, the effect of this section is that after 20 years, unless evidence of a contrary intention is apparent, a way will have been deemed to have been dedicated as a public right of way. Section 31(6) enables an owner to show that he or his successors in title did not intend to dedicate any additional way as a highway.

Under subsection (6) it is possible to lodge a map, statement and statutory declaration rebutting any intention to dedicate any future public rights of way. The map identifies all known public rights of way on the specified land. Once lodged, the map, statement and declaration become public documents and available for public inspection.

The provisions of Section 31(6) are valuable in rebutting presumptions of dedication based on future use—in other words, use after the date of the declaration. Equally, users may be able to provide evidence that a track has been used for 18 years as of right before the date of the first statutory declaration. If they cannot show an additional two years' use before that date they will be unable to claim that a public right of way has been created by deemed statutory dedication under Section 31.

The aim of the amendment is to simplify the process of lodging a map, statement and statutory declaration with the highway authority to rebut deemed dedication. At present, a map, statement and declaration have to be lodged with the authority and a new declaration sworn every six years. The amendment would allow for the statutory declaration alone to contain all the necessary information. Further, instead of a new declaration having to be sworn every six years—even if, as is the norm, there is no change of intention on behalf of the landowner—the amendment allows for the declaration to continue in force until a change in ownership of the land. At present a statutory declaration sworn by a preceding owner has effect on the change of ownership, subject to renewal every six years. The amendment also provides for a register of deposits to be maintained. I beg to move.

Lord McIntosh of Haringey

I am glad that the noble Baroness, Lady Miller, is still here. I want to show my dedication to duty and the way in which I work night and day, weekends and weekdays, for the Government. A couple of weekends ago I was walking up the path behind the church in Montacute towards the hill. I found a sign that I have never before seen. It said, "Permissive path". That did not refer to the activities which might be allowed on the path (which was disappointing) but stated that in accordance with Section 31(6) of the Highways Act 1980 the path is available to the public but is not a right of way. Neither the owner nor the local authority accepts that it is a right of way and the owner or the local authority can extinguish it at any time without notice. I proceeded up the path with due trepidation, but I did not stay until Monday to see whether it was recorded on a list.

Perhaps I may say positively to the noble Baroness, Lady Byford, that to the extent that the amendment is aimed at reducing bureaucracy and providing more information to the public about the landowners' intentions—whether in the form of a lodged declaration or a notice—we are prepared to consider it. However, we would not be willing to make arty changes to Section 31 of the Highways Act which would undermine the concept and practice of deemed dedication, which we think to be an important principle. The noble Baroness has not attacked that principle.

I cannot give a commitment that we shall bring forward amendments on Report because we may conclude that amendments are not necessary. However, on the basis of our support for what we believe to be the thinking underlying the amendment, I hope that the noble Baroness will not press it.

Baroness Byford

I am grateful and somewhat encouraged. I still await full encouragement. I shall consider the matter further.

I am becoming more and more concerned by the number of issues to which the Government will return on Report. I fear that we shall have a very long Report stage if the Government keep failing to come forward with anything substantive on many issues. I am not making that point about this amendment, but as we have gone along there have been ever more issues on which the Government have told us that they are sympathetic and will think about it. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7 p.m.

Lord Glentoran moved Amendment No. 336: Page 60, line 18, at end insert— (" . After section 134(9) of the 1980 Act there is inserted— (10) All references to this section to a footpath or bridleway shall include a restricted byway."").

The noble Lord said: The amendment relates to the current powers on roads used as public paths. Highway authorities have a power under Section 147 of the Highways Act 1980 to authorise the erection of stiles or other appropriate barriers on footpaths, bridleways and roads used as public paths—which are presumed in law to be bridleways—situated on agricultural land to control the movement of animals. It is a widely used provision and land over which such paths run is frequently used for grazing.

The Bill would prevent the authorisation of any form of barrier, however useful and however designed to minimise inconvenience to users, across many rights of way that were once roads used as public paths and have been reclassified as restricted byways. The amendment would correct that omission.

Even the status quo could be affected, as the legal status of existing barriers across RUPPs is unclear. Is it intended that barriers across RUPPs—I hate that; roads used as public paths—already authorised and relied on by land managers should be under threat of removal? The Government need to clarify that.

I sincerely hope that the Minister will accept the amendment, because refusing to do so could cause considerable disruption in certain parts of the countryside.

I shall also speak to Amendment No. 337, which would allow restricted byways to be ploughed subject to reinstatement. The aim of the amendment is to strike a realistic balance between the needs of farmers to utilise their land and the legitimate requirements of users. It is currently possible to plough roads used as public paths provided that the surface of the way is reinstated within a prescribed period. The Bill will reclassify all RUPPs to restricted byways, thus removing the right to plough. That could have grave effects on the management of the land where a RUPP is routed across fields. The amendment would preserve the status quo—as the Bill does in many other respects—by allowing cross-field RUPPs to be ploughed, subject to the duty to reinstate within the statutory time limits.

User groups would obviously oppose any such provision, but their concerns are unfounded, as there are a number of safeguards for users. If a RUPP is in reality a byway there will be no right to plough. Secondly, the power will take effect only if it is not possible to avoid ploughing the path and it will be necessary to plough in accordance with the rules of good husbandry.

Given those constraints, it is difficult to see how any RUPP that has had to be ploughed to date could suddenly be avoided simply because it is relabelled a restricted byway. There are strict time limits for reinstatement of the path to minimise inconvenience to the public.

I hope that the amendments will be considered favourably. I beg to move.

Lord Renton

My noble friend Lord Glentoran has made a powerful case on both amendments. I hope that the Government will consider them favourably. I should point out that there is a small misprint in Amendment No. 336. It should read: All references in this section", rather than: All references to this section". There is no such misprint in Amendment No. 337.

Lord McIntosh of Haringey

I am grateful for the explanation of the two amendments. Amendment No. 336 would extend to restricted byways the provisions of Section 134 of the Highways Act 1980, which enables an occupier of agricultural land to plough footpaths and bridleways in accordance with the rules of good husbandry. I am afraid that we are not able to accept the amendment, so we shall avoid in this case the problem mentioned by the noble Baroness, Lady Byford, of creating too much work on Report.

The Government's original proposal for dealing with the problems of uncertainty over roads used as public paths was to redesignate them as bridleways, but that was strongly opposed by equestrians, not only on the grounds that it would exclude drivers of horse-drawn carriages, but because bridleways may be ploughed and may have gates put across them. That is not true of a road used as a public path, unless the evidence shows that it is a footpath or bridleway or unless a private right to plough was attached to the highway when it was dedicated.

Restricted byways will be a new form of carriageway. They will carry only limited vehicular rights, but horse-drawn carts are less able to cope with a ploughed surface than a horse, and even horses can have difficulties. Under Clause 46(1), a common law right to plough a RUPP will remain, but the Government do not believe that it would be right to introduce new ploughing rights under Section 134. That would be inconsistent with the concept of restricted byways, which has been widely welcomed as an imaginative approach to help non-motorised users of the rights of way network.

In response to our proposals for dealing with RUPPs, the Country Landowners Association said: We suggest that any fears that reclassification to bridleway status will lead to routes being ploughed are unfounded. RUPPs by their very nature and age tend to be separated from field systems by physical boundaries and therefore ploughing them will be of no economic benefit". Amendment No. 337 would extend to restricted byways the power in Section 147 of the Highways Act 1980 for local authorities to authorise the erection of barriers on footpaths and bridleways to control the movement of livestock. Again, I am afraid that we cannot accept the amendment. The express power in Section 147 to allow bridleways to be gated was one reason why horse riders were so opposed to the Government's original proposals to redesignate roads used as public paths as bridleways. I do not need to point out that on the whole horse riders do not like gates because they present problems such as the latches being difficult to reach or covered by overgrown bushes. Most horse riders accept the need for barriers on footpaths and bridleways to control livestock, but we are breaking new ground with restricted byways.

The Government have made clear their desire to do more for equestrians. In developing the concept of restricted byways, we have consciously distinguished them from bridleways in several ways. The Bill will not affect any pre-existing right to erect gates on RUPPs that are redesignated as restricted byways, but we have deliberately not extended the Section 147 powers to the new kind of highway. The amendments would be contrary to our commitment to equestrians and I hope that they will not be pressed.

Lord Glentoran

I am rather distressed by the Minister's response. We are in no way anti horse riders and all that goes with that, but if the amendments are not accepted, the management of land will be impeded. It will be impossible to keep livestock on some tracts of land because barriers cannot be erected to keep them in. Making it impossible to plough paths that go across acres of cereal crops—I have seen such paths in Surrey—is a serious restriction on land management. It is not possible to stop ploughing within a foot of the land that people walk on. It causes considerable inconvenience to break large acreages of cereal land into bits when ploughing.

Therefore, if the Minister will not allow the ploughing of RUPPs where they have been ploughed in the past, with the guarantee of reinstatement and all that goes with it, and will not allow land managers and landowners to put up barriers to keep in livestock, I find that unacceptable. I beg leave to test the opinion of the House.

7.10 p.m.

On Question, Whether the said amendment (No. 336) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 119.

Division No. 1
Attlee, E. Lamont of Lerwick, L.
Biffen, L. Luke, L.
Blackwell, L. Mackay of Ardbrecknish, L.
Blatch, B. Mancroft, L.
Bridgeman, V. [Teller] Mar, C.
Buscombe, B. Marlesford, L.
Byford, B. Monson, L.
Carlisle of Bucklow, L. Moynihan, L.
Carnegy of Lour, B. Northesk, E.
Chalker of Wallasey, B. O'Cathain, B.
Clark of Kempston, L. Onslow, E.
Colwyn, L. Palmer, L.
Cope of Berkeley, L. Park of Monmouth, B.
Courtown, E. Peel, E.
Craigavon, V, Pilkington of Oxenford, L.
Dixon-Smith, L. Rawlings, B.
Elton, L. Renton, L.
Fookes, B. Roberts of Conwy, L.
Gardner of Parkes, B. Rotherwick, L.
Glentoran, L. Seccombe, B.
Harris of Peckham, L. Selborne, E.
Henley, L. [Teller] Shaw of Northstead, L.
Hodgson of Astley Abbotts, L. Simon of Glaisdale, L.
Hooper, B. Strange, B.
Jopling, L. Strathclyde, L.
Kimball, L. Wilcox, B.
Kingsland, L. Willoughby de Broke, L.
Acton, L. Falconer of Thoroton. L.
Addington, L. Farrington of Ribbleton, B.
Allenby of Megiddo, V. Faulkner of Worcester, L.
Alli, L. Filkin, L.
Amos, B. Gale, B.
Andrews, B. Geraint, L.
Archer of Sandwell, L. Gibson of Market Rasen, B.
Ashley of Stoke, L. Goldsmith, L.
Ashton of Upholland, B. Goodhart, L.
Bach, L. Gould of Potternewton, B.
Bassam of Brighton, L. Grenfell, L.
Beaumont of Whitley, L. Harris of Greenwich, L.
Berkeley, L. Harris of Haringey, L.
Blackstone, B. Harrison, L.
Blease, L. Hilton of Eggardon, B.
Brennan, L. Hollis of Heigham, B.
Brett, L Hooson, L.
Bridges, L. Howells of St. Davids, B.
Brooke of Alverthorpe, L. Hughes of Woodside, L.
Brookman, L. Hunt of Kings Heath, L.
Burlison, L. Irvine of Lairg, L. (Lord Chancellor)
Carter, L. [Teller]
Chandos, V. Islwyn, L.
Christopher, L. Jay of Paddington, B. (Lord Privy Seal)
Clarke of Hampstead, L.
Cocks of Hartcliffe, L. Jenkins of Putney, L.
Craig of Radley, L. Judd, L.
Crawley, B. Layard, L.
Currie of Marylebone, L. Lea of Crondall, L.
Darcy de Knayth, B. Lipsey, L.
David, B. Lockwood, B.
Davies of Oldham, L. Lofthouse of Pontefract, L.
Dean of Thornton-le-Fylde, B. Macdonald of Tradeston, L.
Desai, L. McIntosh of Haringey, L. [Teller]
Dixon, L.
Donoughue, L. MacKenzie of Culkein, L.
Dormand of Easington, L. Mackenzie of Framwellgate, L.
Elder, L. Mallalieu, B.
Mar and Kellie, E. Simon, V.
Massey of Darwen, B. Slim, V.
Miller of Chilthorne Domer, B. Smith of Gilmorehill, B.
Milner of Leeds, L. Symons of Vernham Dean, B
Molloy, L. Taylor of Blackburn, L.
Morris of Manchester, L. Thomas of Walliswood, B.
Nicol, B. Thornton, B.
Orme, L. Tomlinson, L.
Perry of Walton, L. Tordoff, L.
Phillips of Sudbury, L. Turner of Camden, B.
Pitkeathley, B. Varley, L.
Plant of Highfield, L. Walker of Doncaster, L.
Powell of Bayswater, L. Warner, L.
Prys-Davies, L. Warwick of Undercliffe, B.
Ramsay of Cartvale, B. Watson of Invergowrie, L.
Rea, L. Whitaker, B.
Rendell of Babergh, B. Whitty, L.
Sawyer, L. Wigoder, L.
Scotland of Asthal, B. Wilkins, B.
Scott of Needham Market, B. Williams of Crosby, B.
Sharp of Guildford, B. Williamson of Horton, L.
Shepherd, L. Woolmer of Leeds, L.
Sheppard of Liverpool, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

7.20 p.m.

[Amendment No. 337 not moved.]

Lord Glentoran moved Amendment No. 337A:

Page 60, line 18, at end insert— (" . In subsection 147(1) of the 1980 Act (power to authorise erection of stiles on footpath or bridleway)—

  1. (a) for "agricultural land, or of land which is being brought into use for agriculture" there is substituted "land";
  2. (b) for "land for agriculture" there is substituted "land";
  3. (c) after "shall be efficiently carried on," there is inserted "or for preventing the unlawful use of the path or way,"; and
  4. (d) "for preventing the ingress or egress of animals" is omitted.

. Subsection 147(5) of the 1980 Act is omitted.

. After subsection 147(6) of the 1980 Act there is inserted—

"(7) All references in this section to a footpath or bridleway shall include a restricted byway."").

The noble Lord said: This amendment also concerns the power to provide barriers but this time not to control stock but to prevent the illegal vehicular use of bridleways, restricted byways and footpaths.

Section 147 of the Highways Act 1980 allows owners or occupiers of agricultural land or land coming into agricultural use to apply to the local authority in respect of a public footpath or bridleway to erect stiles, gates or other works across a right of way.

In agreeing to any such structure, the local authority must consider that it is in the interests of efficient agricultural use being carried out. The erection of a stile or gate is required to prevent the egress and ingress of animals. That is the only ground on which permission can be granted. That narrow power does nothing to respond to increasing concern over the illegal misuse of vehicles on public bridleways and even at times footpaths.

The amendment would amend Section 147 of the Highways Act 1980 to facilitate the use of barriers or other works at the discretion of the authority to prevent unlawful vehicular use of footpaths, bridleways and restricted byways. It would also remove the current restriction on the use of those powers to land used for agriculture or forestry or to land being brought into use for those purposes.

It could, accordingly, be used on land used for keeping horses or ponies for recreational purposes or on land in urban areas. The amendment also removes the current limitation on the purpose of such works which is purely to control the ingress and egress of animals.

This amendment would be highly valuable in preventing rural crime and ensuring the safety of users of rights of way. At present and in practice, very little can be done to prevent the illegal use of footpaths and bridleways by vehicles. If users of a footpath are endangered by such use, authorities could erect some sort of barrier, using the provisions of Section 66 of the Highways Act 1980. However, no such provision exists for bridleways or for the proposed restricted byways.

It is unrealistic to expect a regular police presence to deter illegal vehicular use. As well as often being a source of danger, a particular concern for rural communities is that illegal vehicular use of paths and ways frequently provides the means of access and escape for those engaged in rural crime; for example, theft of property, fly-tipping and perhaps even poaching.

Broadening the highway authority's power to permit the placing of appropriate barriers on rights of way would provide a practical method of preventing illegal vehicular use. As a barrier could be placed only at the discretion of the authority, that would protect users' legitimate concerns while acting to protect both users and landowners alike from illegal vehicular use.

It is recognised that gates on rights of way can inconvenience users. However, all that is sought is for the authority to have discretion to permit gates when there is clearly a problem with illegal vehicular use. Such illegal use is not of benefit to users of the way nor to land managers alike.

Many user groups would favour such a discretion in cases where there is persistent driving on rights of way. Further, from the land manager's perspective, if a route is being used by vehicles to aid theft, and that is adversely affecting the business of the occupier, surely there comes a point where the minor inconvenience to users of having to open and shut a gate is justified.

One benefit of the proposed amendment to Section 147 is flexibility. It would allow the authority to sanction the construction of pinch-points rather than gates where that was felt to be a better solution. From the owner's point of view, it is the illegal use of cars on paths—and, I dare say, motorbikes, quad bikes and so on—with their ability to carry stolen goods which is the major threat to security.

It is recognised that Ministers have sought to avoid the possibility of restricted byways being gated. However, the ability to allow gates across RUPPs has always existed, as they are legally presumed to be bridleways. Extending the power to erect barriers to such ways once they become restricted byways would merely maintain the status quo. There is no reason why it should lead to the erection of further gates unless there was a genuine problem with illegal vehicular use in a particular area.

If the discretion to allow gates is not applied to restricted byways, gates that already exist on RUPPs and which have been authorised by the authority for the control of animals may have to be removed once the RUPPs have been reclassified as restricted byways. That would cause significant resentment among land managers and would fail to recognise the practical problems of controlling the movement of animals.

It should be noted that all that is sought is for the authorities to have the discretion—and I emphasise that—to authorise the erection of gates or other barriers on rights of way where there is good reason for such barriers. There would be no obligation on the authority to grant permission. And, of course, this amendment makes the point that the decision is not in the hands of the landowners but in the hands of the access or local authority. I beg to move.

Earl Peel

I support my noble friend's amendment based entirely as it is on practical common sense. Many of the arguments which my noble friend advanced go back to those which we used when discussing Amendment No. 314 moved by the noble Lord, Lord Williams of Elvel.

The truth of the matter is, as my noble friend said, that this amendment would seek to legitimise what is a current practice. And it is a current practice brought about by a very real need; that is, to stop vehicles from using bridleways. It is happening consistently and it is a problem with which land managers are faced on a regular basis.

The results are obvious: the track becomes disrupted and falls into a state of disrepair; it is costly to maintain; and it is inconvenient for all those people who use those rights of way. As my noble friend quite rightly said, it is a perfect opportunity for people to use those paths for carrying out criminal activities. He mentioned fly-tipping, which is a very real issue now. I can think of many instances where bridleways have been used illegally for fly-tipping by people in vehicles. As my noble friend said, the amendment provides a power to the local authority to permit. That is an important point. It would not provide a widespread power to owners and managers to act in an indiscriminate fashion.

I can think of a number of examples where well-designed barriers on open moorland have been constructed in such a way as to prevent vehicles passing through them illegally. They would not prevent cross-country bikes passing through, but would prevent vehicles, which is of major importance. At the same time, such barriers do not impede access to walkers, cyclists or riders. The Minister earlier referred to riders.

Where such barriers are deemed necessary, they help to deter people from the temptation of using such roads. Seeing a barrier across the road would remove the thought, "I might have a go and see if I can get up this track", or "I might use this for fly-tipping" and so forth. There is no question but that such barriers have been used judiciously when deemed necessary. To my knowledge, the local authorities have not challenged them. I believe that they see the relevance and importance of such barriers. The amendment would legitimise activities which are a necessary part of management procedures.

I hope that the Minister will see reason and sense and that he will accept my noble friend's amendment.

7.30 p.m.

Baroness Miller of Chilthorne Domer

The amendment raises interesting issues. We, on these Benches, are somewhat nervous about the erection of barriers.

Later on in the Bill we shall come to extinguishment of rights of way for reasons of crime. Crime is a serious issue. I understand that there are two reasons behind the amendment: prevention of crime and specifically preventing driving on rights of way. Our attitude to crime prevention falls into a similar category to our attitude to night access. An issue of crime needs to be addressed as such and dealt with in the same way as when people use unclassified roads. Just because they happen to be on a bridleway or footpath does not alter the fact that they have committed a crime and need to be apprehended. However, we do not suggest that because of the large amount of worrying rural crime, we should gate all unclassified roads.

I am intrigued by the suggestion made by the noble Earl, Lord Peel, about other designs of barriers to prevent driving illegally for fun on rights of way. We heard earlier the reasons for discouraging that. If it was possible to design a barrier which would cause trouble to a vehicle trying to negotiate it, but which could be negotiated by walkers of all abilities, including the less able, and by horse riders, that would be a different matter.

I have another difficulty with the amendment. The noble Lord, Lord Glentoran referred to barriers. Horse riders, in particular, experience problems with gates. When the gates are first erected, there are good intentions and the gates start out as open gates. However, after a short time they become chained and locked and are another obstruction.

I understand the good intentions behind part of the amendment. However, on the whole, I find it more worrying than helpful.

Baroness Mallalieu

Perhaps I may ask the Minister to consider carefully this amendment. In the area in which I live there has been a problem on a number of major bridleways with trespass by travellers. There are not adequate provisions for lawful sites. Steps have been taken to provide the sort of barrier to which the noble Baroness referred. They have offset rails, and are at a height which makes it perfectly possible for people to ride in a figure of eight in order to pass through. Walkers are not impeded in any way, but caravans and cars are.

Strictly speaking, that form of trespass may not be a crime. However, it can lead to the closure of those paths for all other users because car breaking may take place, broken glass and metal may be left and there may be difficulty in passing. This is a real problem in some areas. It can be dealt with in a way that does not prevent legitimate use of the path. The very limited provisions which allow for such barriers to be erected only by permission of the authorities seem to me to be necessary.

Baroness O'Cathain

I, too, support the amendment, and can see the reason for it, particularly in view of crime, to which we shall come later in the Bill, but also because of fly-tipping. Since the introduction of the landfill tax, there has been a huge increase in fly-tipping. That militates against the enjoyment of walkers. I am told that this is partly the reason for the Bill. Walkers will feel much more confident if they know they will not be mown down by 4 x 4s on the bridleway. From the point of view of walkers and riders, the amendment is a good idea.

The noble Baroness, Lady Miller, referred to the sudden chaining of gates. If the authorities are given the power to erect such barriers, it would be in their remit to ensure that that does not occur. Such a situation could be reported and the problem obviated.

Lord Kimball

I, too, add my support to the amendment. Nowadays, there are a large number of "hippy" people. Once on one's land, it is almost impossible to remove them and it costs a great deal of money to do so. It is important to agree with the local authority that a substantial barrier is put in place. The police come round and warn landowners when such people are on the move, so that in the first instance, one can block the road with every conceivable form of farm machinery. However, after that, a substantial barrier has to be erected. I hope that the Minister will realise what a major problem that is in the countryside.

The Earl of Selborne

I apologise for delaying the Committee, but I should like briefly to add my support. It has been a feature in my part of Hampshire that travellers have moved on to land and caused great damage. Three or four weeks ago, devastating damage was done to the working men's club in Whitehill off public access. It is perfectly possible to design a barrier which in no way impedes foot users and riders. This is a happy amendment which achieves the objective of furthering the interests of genuine bridleway and footpath users. At the same time it achieves much for the peace of mind of others involved with the land.

Lord McIntosh of Haringey

Perhaps the Committee will forgive me if I do not trespass on the wider issues of vehicular access to restricted byways and bridleways. Such issues have been debated and will be again when we come to Schedule 7. I do not want to debate that now; nor do I think that it is entirely relevant to discuss the issue of travellers. I certainly do not want to do that in case I find that the noble Lord, Lord Kimball, has been boasting about doing things which are illegal! I am not sure about putting farm machinery across public rights of way as a solution.

I have listened carefully to what has been said by all those who have taken part. We cannot accept the amendment, but I have some comments on alternatives. We believe that Section 147 of the Highways Act has stood the test of time. The general public accept that gates and fences are required to prevent livestock wandering where they should not. Indeed, in some parts of the country stone stiles are effective, attractive and traditional.

However, the amendment would have the potential for significantly increasing the number of gates and barriers on rights of way. I know that in the end this would be up to the local authority. However, I do not believe that local authorities are given power to do things unless it is thought that such power would be used. I assume that those who have taken part in the debate believe that that power would be used. It would allow the occupier of any land to ask the local highways authority, or other competent authority, to grant permission to erect a gate or other barrier on a footpath or bridleway to facilitate the efficient use of that land for any purpose. That in itself is very wide. It could cover virtually any operation whether it be agriculture, forestry or any other use. That could include developed land—that is, land in urban areas—crossed by footpaths and bridleways.

It goes further, in that it would allow barriers to be created to prevent unlawful use of a right of way. It would also extend to restricted byways, and I argued that in relation to Amendments Nos. 336 and 337. With regard to the other points, we are not convinced that the case for extending Section 147 in the way in which the amendment proposes is sufficiently great to override the public interest in having footpaths and bridleways which are reasonably clear of barriers for them to surmount.

I understand the arguments about criminal use of footpaths and bridleways. But Section 147 is not the way to tackle it. For example, it is difficult to see how a gate could keep out a motorist unless it were locked, and, if it were locked, walkers and riders could not get through. It could also make life difficult for disabled people.

Earl Peel

I hope I explained when speaking to my noble friend's amendment that the sort of barriers that I have seen in place are designed in such a way that horse riders, cyclists and walkers can get round them. That is an important point.

Lord McIntosh of Haringey

I indicated that I would come on to that matter. However, I want to make the point in relation to the amendment before us, which concerns gates. A gate will not deter a motorist unless it is locked; and if it is locked it will deter other people as well.

As the noble Earl, Lord Peel, rightly said, there are alternatives and they could be bollards or, as my noble friend Lady Mallalieu, said, parallel rails—a sort of chicane—and bollards or a chicane would certainly deter motorists but they would not deter motorcyclists. We must consider how effective they would be in dealing with illegal use or use for criminal purposes, though not illegal.

The department is reviewing the road traffic regulation law. It will be difficult for me to undertake to bring back amendments on Report in this Bill. However, we undertake to look at forms of deterrent other than the gates proposed in the amendment. On that basis I hope that the noble Lord will not press the amendment.

Lord Glentoran

I thank the Minister for that explanation of the Government's view. I should like to say to the noble Baroness, Lady Miller, that our key point on this amendment was not the prevention of crime, though it would be a help. Where crime is concerned, it is worth saying that we are taught day in and day out by the authorities that prevention is far better than cure and to help to prevent crime is the right thing to do. So if the amendment was to help prevent crime then it would be doing a public service.

The noble Baroness, Lady Mallalieu, as an expert in this field, gave her view in relation to horse riders. That was extremely helpful. We are in no way setting about trying to deter or prevent walkers having free and easy access to footpaths with this amendment; indeed, the contrary. We want them to have free and easy access, and also safety and not to have to worry about quad bikes, four-wheel drive vehicles and so forth spoiling their afternoon, evening or even night.

I felt that the Minister did not take the business of travellers seriously. If he was saying that he would return to the matter later in the Bill, I accept that. I believe that the issue of travellers—I am not sure what the English term is, gypsies or whatever—is a real problem. It is of real concern to local authorities and landowners. They have an ability to find their way up small muddy tracks and then set up camps which take an eternity to get rid of. My noble friend Lord Kimball mentioned the hippies and they probably come under the same category.

I am satisfied that the Minister says he will take on board and accept the need to attempt to carry out in the Bill the amendment's original objective.

Lord McIntosh of Haringey

I cannot undertake that amendments will be produced within the Bill. We recognise the problem. We do not believe gates are the answer and do not believe this amendment to be the answer. It may be that a solution will have to be found in some other way.

Lord Glentoran

I thank the Minister for that intervention. In that case we will read what he said and await the outcome of the Bill at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendments Nos. 338 and 339:

Page 60, line 19, leave out ("329(1) of the 1980 Act (interpretation)") and insert ("329 of the 1980 Act (interpretation)— (a) in subsection (1)").

Page 60, line 22, at end insert— ("(b) in subsection (2) for "either "bridlewav" or "footpath"" there is substituted ""bridleway", "footpath" or "restricted byway"".").

On Question, amendments agreed to.

On Question, Schedule 5, as amended, agreed to.

Baroness Farrington of Ribbleton

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.