HL Deb 09 October 2000 vol 617 cc116-48

  1. (" —(1) Any public vehicular rights that exist over a way that—
    1. (a) does not appear on the definitive map as a byway open to all traffic; or
    2. (b) has not been used by the public at large with vehicles at any point between the commencement of this Part of this Act and the cut-off date,
    shall be extinguished.
  2. (2) Any owner or lessee of premises adjoining or adjacent to the way shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the way.").

The noble Baroness said: The noble Lord, Lord Williams of Elvel, is not in his seat but he may have realised why, although this amendment is similar to one he moved earlier, I decided to take it separately.

There is a significant problem where historical routes, not used in living memory and possibly showing no physical trace on the ground, can be required to be opened to public vehicles. Someone can argue, for example, that an enclosure award shows that a carriageway was created 200 years ago—although all of us know that there were no motor vehicles 200 years ago. If it can be shown on the balance of probabilities that such a right exists the route can be added to the definitive map as a byway that is open to all traffic. That establishes that it is open as of right to vehicles, even if there has been no vehicular right in the past. That is the cause of much conflict between vehicle groups, other user groups and occupiers of the land.

It appears that the definitive map cut-off provisions in Clauses 49 to 52 of the Bill cannot easily be applied to tackle the problem because there is an element of user in the definition of a BOAT. A BOAT is a special type of carriageway in that it carries vehicle rights but is used mainly for the purposes for which footpaths and bridleways are used; for example, walking and horse riding. Because of that element of user in the definition there is a need for an alternative approach which is of equal application to BOATs and other minor carriageways—often unsurfaced and commonly termed "unclassified carriage roads"—that carry full vehicular rights but are not used mainly by walkers and horse riders.

One approach to the solution, while preserving all vehicular routes relied upon, is to extinguish public vehicular rights over routes which have not been used by the public at large with vehicles between the date that the legislation comes into force and the cut-off date and do not appear on the definitive map of byways. After the cut-off date, if the right of the public to use a way with vehicles was challenged, which would be unlikely on regularly used ways but impossible over ways recorded as byways, the users would have to provide evidence of both public vehicular rights and use by the public at large—in other words, more than one or two individuals—with vehicles between 2001 and 2006. Such an approach means that, come 2026, any rights would be extinguished only where that use could not be shown and a claim had not been successfully made to add the path to the map as a byway on the basis of any evidence. The rights extinguished would be historical rights only. Minor roads, UCRs, which continued to be used would be protected from extinguishment as any challenge to their status could be rebutted with evidence of use after 2001.

Subsection (2) acts to protect vehicular access to properties served by any public vehicular route subject to extinguishment. That preserves the status quo for all landowners, both the frontagers and the owners of the subsoil, as no new rights would be created, the rights of frontagers being merely preserved in the form of a private rather than public vehicular right of way. I beg to move.

Lord McIntosh of Haringey

I congratulate the noble Baroness, Lady Byford. This amendment is a brave attempt to deal with an intractable problem. The amendment would appear to operate to extinguish all public vehicular rights of way over any highway that is not recorded on a definitive map as a byway open to all traffic. It specifies that any public vehicular rights that exist over a way that does not appear on the definitive map as a byway open to all traffic or as not being used by the public at large between commencement and the cut-off date shall be extinguished.

The amendment appears to provide that, irrespective of whether vehicular rights are recordable on a definitive map as a BOAT, they ought to be extinguished. For example, the provision as drafted would cover cycle tracks which are not recordable on a definitive map and would operate to extinguish the public's right to ride pedal cycles over bridleways, as well as the new rights to drive non-mechanically propelled vehicles over restricted byways. Another problem is that it may well extend to trunk roads and motorways. We do not believe that it is intended to do that, but we believe that "or" should be replaced by "and".

The amendment seeks to find a way round the problem of how to deal with unrecorded vehicular rights of way after the cut-off date by limiting its operation to extinguishing only those vehicular rights that have not been used by the public at large between commencement and the cut-off date. That is the core of the proposal. However, it does not distinguish between pre-1949 rights of way and rights of way created after that date. It only extinguishes vehicular rights and leaves other rights of way whether or not they are recorded.

The core of the problem is that byways open to all traffic are not defined solely by the rights attached to them. That is where they differ from footpaths, bridleways and, under the Bill, restricted byways. The reason for that is a simple one: BOATs are full carriageways but definitive maps were never intended to record all carriageways, only those which are particularly suitable for walkers and horse riders. So the Wildlife and Countryside Act defines a BOAT in relation not only to the vehicular rights over it but also by reference to its character as a highway that is likely to be used more by horse riders or walkers.

So distinguishing between a BOAT and other unclassified roads—there are 113,000 miles of unclassified roads in this country—requires an investigation of each one on a case-by-case basis. That is the problem with a blanket extinguishment of unrecorded BOATs. How does one ensure that the unclassified roads which make up over half of all roads in England and Wales are not extinguished as well? I confess that we do not know the answer to that problem. I should not be saying that, should I? That is why there is no provision in the Bill for extinguishing public vehicular rights of way over any hitherto undiscovered byway open to all traffic which is not shown on a definitive map in any form at the cut-off date.

The Bill does provide for the extinguishment of any unrecorded pre-1949 higher rights over ways which are shown on definitive maps as footpaths, bridleways and restricted byways at the cut-off date. So it already goes some significant way in dealing with the aims behind the amendment, which only operates to extinguish public vehicular rights of way.

Amendment No. 360A is a brave attempt to find a solution to the problem. It seeks to provide for the extinguishment of all public vehicular rights of way over any highway, including motorways, if these are not recorded on a definitive map at the cut-off date. It then excludes from the provision any road which has not been used by the general public at any point between commencement of the cut-off date provisions and the cut-off date itself. Finally, it seeks to avoid problems analogous to those which some people have in gaining access to their properties over common land by giving all owners of premises along an extinguished way the right to drive on it.

We do not believe that the amendment provides a satisfactory solution because it would still require a case by case examination of every vehicular right of way which was likely to be caught by it. It would need to be decided whether a highway was extinguished or not.

We do not believe that a user test would, in practice, be a workable solution. Apart from generating a good deal of additional work for the courts, to decide disputes about whether use had been by the public at large or by too few individuals it would only be prudent to ensure that local highway authorities monitor use. But that would be an enormous task.

Baroness Scott of Needham Market

This is a worrying area for local authorities and local communities. Certainly when I chaired the rights of way committee in Suffolk, the issue of RUPPs being reclassified as byways open to all traffic was one which generated more anxiety among local people than any other. In the absence of any other provision, we tended to fall back on the use of traffic regulation orders. At the moment they appear to be the only ray of hope that one can offer. However, the process is very tedious, bureaucratic, long-winded and expensive. Perhaps the Government will consider streamlining and making the TRO procedure more user-friendly, so that if the amendment tabled by the noble Baroness is not possible, there is at least a practical way that we may begin to address this problem.

Lord McIntosh of Haringey

Perhaps we can have a meeting between now and Report. Will the noble Baronesses, Lady Scott and Lady Byford, talk to us about it? We acknowledge the problem; we have just not found the ideal solution to it.

I come to the point made by the noble Baroness, Lady Scott. If the intention is to extinguish unused vehicular rights of way, perhaps Section 116 could provide a much better way to do that on a case-by-case basis. Shall we discuss the issue later, rather than pursue it now?

Earl Peel

Just before the noble Lord sits down, will he answer a simple question? He said that only byways open to all traffic that were suitable for walkers would appear on the definitive map. What will happen when they become unsuitable for walkers? Will they simply be removed?

10 p.m.

Lord McIntosh of Haringey

The purpose of definitive maps is to record only those byways which are particularly suitable for walkers and horse riders. If a change took place and they were no longer particularly suitable for walkers and horse riders, I suppose that they would have to be removed from the definitive map. I cannot see quite how that would happen.

Earl Peel

Perhaps it would be to do with the discussion we had earlier about vehicles.

Lord McIntosh of Haringey

Even if they were not in good repair as a result of use by four-wheel drives, that would not take them off. The answer is that they are left on the map unless they are changed by a legal event rather than by a physical one.

Baroness Byford

I am grateful to the Minister for suggesting that we meet. It is a huge problem. The noble Lord said that the amendment is a brave attempt. I realise that it is a brave attempt. Indeed, considering the time of night, I think it is an even braver attempt. When the noble Lord said that this might well apply to highways and all trunk roads, I thought that I might be solving at a stroke the problem of his noble friend Ken Livingstone and many other problems in towns and cities.

Lord McIntosh of Haringey

Ken Livingstone is neither noble nor my friend.

Baroness Byford

The former is correct. I do not quite know how that will be read in Hansard. My intention was not to have a broad-brush provision. I shall look at the Road Traffic Regulation Act. That is probably the right way to go about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Bridleway rights over ways shown as bridleways]:

Lord McIntosh of Haringey moved Amendment No. 361: Page 32, leave out lines 4 and 5 and insert—

  1. ("(a) was immediately before 1st January 1949 either a footpath or a bridleway, and
  2. (b) is, throughout the period beginning with the commencement of this section and ending with the cutoff date,").

The noble Lord said: In moving Amendment No. 361, I shall speak also to Amendment No. 362. These amendments relate to Clause 51, which 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. This is something of a quid pro quo for the extinguishment provisions in Clause 49.

Amendment No. 361 clarifies the intention that, to be consistent with Clause 49, Clause 51 should apply only to those highways which were footpaths or bridleways immediately before 1st January 1949. Amendment No. 362 ensures that any existing private rights of way over the way in question shall be protected. This is also consistent with the approach taken in Clause 46(1). I beg to move.

Lord Glentoran

Is the noble Lord speaking to Amendment No. 363? I do not see it in the groupings list.

The Deputy Chairman of Committees (Lord Skelmersdale)

If it will help the Committee, Amendment No. 363 was spoken to with Amendment No. 311.

Lord McIntosh of Haringey

I am grateful to the Deputy Chairman for his totally objective and professional assistance in this matter.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 362 and 363: Page 32, line 15, at end insert — ("( ) Any right of way over a way by virtue of subsection (1) is subject to any condition or limitation to which the public right of way on foot over that way was subject on the cut-off date."). Page 32, line 28, leave out from ("52") to end of line 30.

The noble Lord said: Amendment No. 362 was spoken to with Amendment No. 361 and Amendment No. 363 with Amendment No. 311. I beg to move.

On Question, amendments agreed to.

Clause 51, as amended, agreed to.

Clause 52 [Cut-off date for extinguishment etc.]:

Baroness Byford moved Amendment No. 364: Page 32, line 32, leave out ("2026") and insert ("2016").

The noble Baroness said: The amendment deals with the bringing forward by 10 years of the cut-off date for the definitive map. At present, owners or potential purchasers of property cannot be certain whether their land is crossed by rights of way that are yet not shown on the definitive map. Routes not used in living memory, which may be of little or no value for recreation, can be claimed. When those claims are made, often the historical or user evidence is unclear. Neither the landowners, the user, nor the highway authorities may know the status of the route, or indeed if it carries any public rights at all. Conflict can ensue.

The benefit of a cut-off point for the use of historical or user data is that this uncertainty and source of conflict for all parties would be removed. User groups are correct in arguing that a source of public rights of way will be lost, but the benefit to the wider public of the ways claimed is often minimal. Furthermore, historically, public routes have come into being to get from point A to point B, not for public recreation. Where there is a need, using the modern criteria, for a right of way, this can often be created by agreement or by order along the most suitable route for users as well as for landowners.

The inclusion of a cut-off date for definitive maps was a welcome improvement made to the Bill at Report stage in the House of Commons, although any date which prevents claims relating to the alleged historical routes—which are often unsuitable today—would also be welcomed. A date of 20 to 30 years in the future will be seen as being of limited benefit to landowners and occupiers today—that date is a long way off. Moreover, the proposed cut-off date does not reflect the Government's original proposals contained in their first consultation paper. There it was agreed that an accurate legal record of rights of way was important. However, it argued, The longer the time taken to complete the historical record, the more the uncertainty for user and landowner and the fewer the resources for creating new and alternative rights of way".

Originally a term of 10 years was suggested as the period during which all outstanding claims made solely on the basis of historical evidence should be made. Providing in the Bill a period of 25 years more than doubles that initial response and does little to reduce the uncertainty which the Government wish to remove. I suggest that we need to solve the contentious issues which surround the existence and status of public rights of way. This can be done only if the Government stand by their initial proposal for a shorter period rather than allowing this issue to drift on for another quarter of a century.

The amendment would provide a cut-off date 15 years from the commencement of the Bill. It allows an additional five years beyond the Government's original suggestion to research and submit modification orders, thereby responding to the concerns expressed by many organisations representing the users of rights of way. However, it is still short enough to demonstrate that the Government are determined to bring forward the date when the definitive maps can become truly definitive. I beg to move.

Baroness Scott of Needham Market

I should say at this point that we on these Benches do not feel that we can support this proposal. We have grave concerns about the introduction of a cut-off date of any kind. It is important to understand the nature of public rights of way and how new rights of way come into being.

If we had in place a properly funded and systematic research programme, then perhaps we could have a little more sympathy with the notion of a cut-off date. However, that is not the case. The fact that any rights of way exist at all appears to rely on the work undertaken by voluntary user groups of the kind we discussed earlier. In some places they are well established and therefore their areas are well covered by rights of way. But in other areas there are only very few such people and groups. Because of that, historic routes are being lost. Under the provisions of a cut-off date, more would be lost. Indeed, if that date is brought forward, those rights of way will be lost at an even faster rate.

Perhaps one could take the view that it does not matter if an old route is lost. People do not walk them as much any more. Perhaps they were last used extensively 300 years ago. However, we do not take that view as regards old buildings; we treasure and nurture them. Ancient routes seem to be regarded differently, but I contest that they do matter. The route from one village to the next walked by local people for hundreds of years forms a part of the landscape. We would like to walk it in the way that people have done for several hundred years.

There is a grave danger that with any kind of cut-off provision these routes will be lost. If, as the amendment proposes, the date is brought further forward, even more will be lost. That would be to the detriment not only of the walking public but of the heritage that we leave our children.

Lord Kimball

I support my noble friend's amendment. It is essential that we come to an agreement about this issue, otherwise it will be hanging over us for a very long time. A period of 25 years is far too long. It is only fair to the owners and occupiers of land that we should have a date to work to. The date should be brought forward to 2016, as proposed in my noble friend's amendment.

Lord Whitty

The aim of these clauses is to encourage local authorities to complete the historic record of rights of way in the interests of the general public and of all those who have rights of way crossing their land. The record of local authorities so far and the certainty that exists has not been good. The clauses are therefore essential if we are to achieve the overall objective of Part II—that is, to achieve a proper and certain definition of the rights of way network which will provide certainty for land managers, for walkers and for the general public.

The proposals in their present form and in their previous form have not proved universally popular. As the noble Baroness said, our consultation paper originally proposed a 10-year period for the submission of claims. More than 75 per cent of respondents opposed that proposal, many on principle and others on the grounds that 10 years was nowhere near long enough.

We considered the various options, including the Countryside Commission's recommendation that individual maps should be closed only on an ad hoc basis after the historic network had been researched and recorded to a high standard against agreed criteria. We also took account of the backlog of work that already exists.

It should be borne in mind that the Government's original proposal for a 10-year deadline related only to claims based solely on historic documentary evidence. I agree with the noble Baroness, Lady Scott, that these historic routes are vital, whether they are used or not. On the other hand, we have to find out whether there are claims to routes based on deemed dedication—that is, do people use them? In many cases it has been difficult to distinguish between the two. We therefore had to have a time period and a process which covered both types of rights of way.

I agree that it is necessary to have a deadline on the face of the Bill, but realistically it is not possible for that deadline to be 10 or 15 years. We believe that it should be 25 years, although a number of people, including the Liberal Democrats, feel that 25 years may be too short. We believe that 25 years is the target we should work to. The task is achievable in that time, provided that priority is given to it and provided, as the noble Baroness, Lady Scott, pointed out, that the resources are allocated to it. That has not been the case in the past.

As the issue of resources has been referred to, it would be useful to put on record that the costs and benefits of the proposals for Part II have been assessed. We estimate that the cost of Part II to local authorities would be up to £19 million per year. The department will cover those costs. The main element of local authority funding will be started probably in 2002–03 to coincide with the implementation of most of the provisions of Part II of the Bill. The figure of £19 million is not far from the local authorities' own estimate of the cost. I can commit the Government to meeting those costs, thereby underlining our commitment to ensuring that local authorities can meet the 25-year deadline. Given the complexities of the matter, the 15-year deadline referred to in the noble Baroness's amendment would not be achievable even with those resources. I hope that she will not pursue the amendment.

10.15 p.m.

Baroness Byford

I thank the Minister for his response. I am glad to hear his confirmation that it was the Government's original intention that the period should be 10 years. Perhaps I may address that point first.

One matter that worries us on these Benches is that attempts to deal with issues that need tackling—and we give the Government credit for addressing them—may well not come to fruition if we do not readily acknowledge that they need tackling quickly. I understand where the noble Baroness, Lady Scott of Needham Market, is coming from. In purely political terms she would oppose any cut-off date; she would not want to see a cut-off point in 20, 30 or even 50 years' time. I respect her view, although I do not share it. I believe that I have not misunderstood the noble Baroness in saying that she would set no time limit at all.

My concern is that, unless local authorities are given strong direction on this matter, as the noble Lord said, they will probably get round to starting it in 2002 and 2003—a further two years down the line. The difficulty that I have with not setting a timetable that is possible to achieve is that matters will be allowed to drift, as they have in recent years. Surely in this age of modern technology and support we can get to grips with this matter.

As the Government have said clearly, and the noble Lord has just repeated—

Baroness Miller of Chilthorne Domer

Before the noble Baroness leaves that point, it is probably wrong to attribute to ideology our wish not to see the cut-off date brought forward. It is not a matter of political ideology; it is a question of practicality. Many Conservative-run county councils have equal backlogs.

Will the noble Baroness accept the point that, if the cut-off date is brought forward, although those footpaths that are on the map may remain footpaths, and bridleways may remain bridleways, the difficult-to-prove historic links will be lost. The point of the 75 per cent representation mentioned by the Minister featured heavily—the fact that the network would remain fragmented. It was as much the point about fragmentation as any other that came over strongly in those representations. Will the noble Baroness accept the fact that, although, as she said, it may be of limited benefit to landowners and occupiers to have a longer cut-off date, if what we are seeking is an overall improvement to the whole network, we need to be sure that it is a complete network? A longer period before the cut-off is more likely to ensure that.

Baroness Byford

I do not necessarily agree with the noble Baroness's final proposition—that the longer one has, the more one is likely to achieve the goal. I was not making a party-political point; it was a point made by the noble Baroness's noble friend in saying that she was personally opposed to any timescale.

The thrust of my argument is that, if the Government are intending to provide money—the noble Lord mentioned a figure of £90 million—would it not be much more practical in getting things going if we keep a shorter timescale, even if more money is provided in the first instance, to achieve the goal? My fear is that year one comes, year two comes, and all local authorities, whether Conservative, Labour or Liberal, are under pressure, as I know very well. They have so many other matters with which they must deal. The Government originally sought a cut-off point after 10 years; we on these Benches feel that 25 years is too long; I should have thought that a provision for a period of 15 years, with the right finance, so that we can actually get to the base of this matter was important. I wish to test the opinion of the Committee.

10.19 p.m.

On Question, Whether the said amendment (No. 364) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 57.

Division No. 2
Allenby of Megiddo, V. Kingsland, L.
Beaumont of Whitley, L. Luke, L.
Blatch, B. Mancroft, L.
Bridgcman, V. Marlesford, L.
Bridges, L. Northbourne, L.
Byford, B. Northbrook, L.
Carnegy of Lour, B Northesk, E.
O'Cathain, B. [Teller]
Cope of Berkely, B. Palmer, L.
Craigavon, V. Peel, E.
Dixon-Smith, L. Roberts of Conwy, L.
Glentoran, L. Selborne, E.
Henley. L. [Teller] Skelmersdale, L.
Hunt of Wirral, L. Strange, B.
Jopling, L. Williamson of Horton, L.
Kimball, L. Willoughby de Broke, L.
Addington, L. Goldsmith, L.
Alton of Liverpool, L. Gould of Potternewton, B.
Amos, B. Hollis of Heigham, B.
Andrews, B. Hoyle, L
Archer of Sandwell, L. Hunt of Kings Heath, L.
Ashton of Upholland, B. Irvine of Lairg, L. (Lord Chancellor)
Bach, L.
Bassam of Brighton, L. Judd, L.
Blackstone, B. Layard, L.
Brennan, L. McIntosh of Haringey, L. [Teller]
Brett, L.
Burlison, L. MacKenzie of Culkein, L.
Carter, L. [Teller] Mackenzie of Framwellgate, L
Chandos, V. Mallalieu, B.
Crawley, B. Mar and Kellie, E.
Davies of Oldham, L. Miller of Chilthorne Domer, B.
Dean of Thomton-le-Fylde, B. Puttnam, L.
Desai, L. Ramsay of Cartvale, B.
Dubs, L. St.John of Bletso, L.
Elder, L. Sawyer, L.
Falconer of Thoroton, L. Scott of Needham Market, B.
Farrington of Ribbleton, B. Sharp of Guildford, B.
Filkin, L Simon, V.
Gale, B. Symons of Vernham Dean, B.
Gibson of Market Rasen, B. Taylor of Blackburn, L.
Thomas of Walliswood, B. Watson of Invergowrie, L
Thornton, B. Whitty, L.
Wilkins, B.
Tomlinson, L. Williams of Crosby, B.
Warwick of Undercliffe, B. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

10.28 p.m.

Baroness Byford moved Amendment No. 365: Page 32, line 35, leave out paragraph (a).

The noble Baroness said: This amendment aims to remove the provision which allows the Secretary of State to substitute a later, "reserve" definitive map cutoff date beyond 2026. The purpose of Part II of the Bill is to improve the rights of way network. One of these provisions closes the definitive map in order to complete the historic record. By establishing exactly what exists on the ground, further improvements can be made through creations, diversions and extinguishments to accomplish the Government's objective of providing a network which meets modern needs.

The government proposals originally suggested a 10-year period after which the definitive map would be closed to future claims that rights of way exist on the basis of historic evidence. The Bill extends this time to 25 years. Clause 52(2) would allow a further extension of time beyond 2026. With this additional provision, doubt arises as to the Government's desire to accomplish what would be a major improvement to reduce the uncertainty behind the rights of way system.

A cut-off date should be a date after which the rights of way cannot be added to the definitive map. It should not be a movable feast. There is a need to call a halt to the process of establishing rights of way by claims and instead to use creation agreements and orders to link up, upgrade and improve the network taking account of modern recreational and land management needs. This cannot be achieved if every time the cut-off date comes close it is moved further into the future. User groups must be encouraged to accept that it is far better to create, let us say, an additional 20,000 miles of paths in places where they are needed than to seek to establish the same additional mileage, often with scant recreational benefit by the process of a claim and counter-claim which involves disproportionate amounts of time taken in research with its associated costs. I beg to move.

Lord Whitty

Since the noble Baroness did not like the 25-year period, I am not surprised that she does not like the ability to go beyond 25 years. It is not our intention to signal that we expect the process to go beyond 25 years.

However, we believe that it is prudent to make provision for the period to be extended if, for example, there are specific areas where there has been a failure to deliver on the network and we would otherwise lose a significant number of unrecorded rights of way. Rather than a general extension, it is to cover that contingency—given the history of this issue it is not an unlikely contingency—irrespective of the effort, priority and resources we are now putting into it. If this were regarded not as a general extension but one which deals with specific problems, the provision may be more palatable, at least to those who believed that 25 years was the appropriate period. I hope that the noble Baroness will not pursue the amendment.

Baroness Byford

The Minister will not be surprised that I am not enamoured with his response. He refers to areas which may not be covered by the 25-year period. Those areas are undefined.

I am not happy with his response. Unless the noble Lord wishes to add to what he said, I wish to test the opinion of the Committee.

Lord Whitty

Perhaps I may clarify what I said. We are not talking about the likelihood of a general extension but the possibility that there may be one area of the country where the job has not been done effectively. To have that absolute deadline in Devon and lose a large number of unrecorded paths in that county would mean that the national map was not definitive. That is the contingency we intend to cover, not a general extension.

Lord Northbourne

Before the Minister sits down, does he agree that the only way to obtain a complete return is to set a hard finishing date?—otherwise there will always be people who will look for the exception.

Lord Whitty

In general, I agree. However, we know enough about the complexity of the issue to recognise that there may be difficulties even with a 25-year deadline.

Baroness O'Cathain

Did the Minister say that he did not expect the process to go beyond 25 years, but on the other hand some flexibility was needed? Surely 25 years is an enormous length of time. In many other areas of our national activity, such as income tax returns, there are deadlines. It is not beyond the bounds of possibility. People just need to have some steel put into them to get on with it.

Lord Whitty

Even with income tax returns, some people do not meet the deadline, despite the sanctions applied. Because of the complexity of the issue, we need some leeway. The big print is that there is a 25-year deadline, but we have to bear in mind that we have been running the requirement on local authorities for 50 years, since 1949, and most have singularly failed to do it, at least in the non-urban areas. We need a 25-year deadline, but we have to accept that some flexibility may be needed. We are putting a maximum of five years on that flexibility. I hope that noble Lords will accept that.

Baroness Byford

The Minister has just made the case for putting the issue to the vote. I beg leave to seek the view of the Committee.

10.35 p.m.

On Question, Whether the said amendment (No. 365) shall be agreed to?

Their Lordships divided: Contents, 30; Not-Contents, 56.

Division No. 3
Allenby of Megiddo, V. Luke, L.
Blatch, B. Mancroft, L.
Bridgeman, V. [Teller] Marlesford, L.
Bridges, L. Northbourne, L.
Byford, B. Northbrook, L.
Carnegy of Lour, B. Northesk, E.
Cope of Berkeley, L. O'Cathain, B.
Craigavon, V. Palmer, L.
Dixon-Smith, L. Peel, E.
Glentoran, L. Roberts of Conwy, L.
Henley, L. [Teller] Selborne, E.
Hunt of Wirral, L. Skelmersdale, L.
Jopling, L. Strange, B.
Kimball, L. Williamson of Horton, L.
Kingsland, L. Willoughby de Broke, L.
Addington, L. Hunt of Kings Heath, L.
Amos, B. Irvine of Lairg, L. (Lord Chancellor)
Andrews, B.
Archer of Sandwell, L. Judd, L.
Ashton of Upholland, B. McIntosh of Haringey, L. [Teller]
Bach, L.
Bassam of Brighton, L. MacKenzie of Culkein, L.
Beaumont of Whitley, L. Mackenzie of Framwellgate, L
Blackstone, B. Mallalieu, B.
Brennan, L. Mar and Kellie, E.
Brett, L. Miller of Chilthorne Domer, B
Burlison, L. Patel, L.
Carter, L. [Teller] Puttnam, L.
Chandos, V. Ramsay of Cartvale, B.
Crawley, B. Sawyer, L.
Davies of Oldham, L. Scott of Needham Market, B.
Dean of Thornton-le-Fylde, B. Sharp of Guildford, B.
Desai, L. Simon, V.
Dubs, L. Symons of Vernham Dean, B.
Elder, L. Taylor of Blackburn, L.
Falconer of Thoroton, L. Thomas of Walliswood, B.
Farrington of Ribbleton, B. Thornton, B.
Filkin, L. Tomlinson, L.
Gale, B. Warwick of Undercliffe, B.
Gibson of Market Rasen, B. Watson of Invergowrie, L.
Goldsmith, L. Whitty, L.
Gould of Potternewton, B. Wilkins, B.
Hollis of Heigham, B. Williams of Crosby, B.
Hoyle, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

10.45 p.m.

Clause 52 agreed to.

Clause 53 agreed to.

Schedule 6 [Amendments relating to creation, stopping up and diversion of highways]:

Baroness Miller of Chilthorne Domer moved Amendment No. 365A: Page 60, line 33, at end insert— (" . After section 26 of the 1980 Act there is inserted—

"Application for a public path creation order.

26A.—(1) Any person may apply to a council for the area in which that land is situated for the making of a public path creation order to create a footpath or bridleway over land.

(2) An application under this section shall be in such a form as may be prescribed and shall be accompanied by a map, on such a scale as may be prescribed, showing the land over which the public right of way would be created, and by such information as may be prescribed.

(3) Regulations may provide—

  1. (a) that a prescribed fee is payable on the making of an application under this section; and
  2. (b) that further prescription charges are payable by the applicant if the application is granted.".").

The noble Baroness said: This group of amendments—Amendments Nos. 365A, 381A and 402B—seeks to start to improve the network and to guard against a net loss. It seeks to widen the category of those persons who may take action to improve the rights of way network.

Amendment No. 365A is concerned with creation because it adds, after Section 26 of the Highways Act 1980, that any person may apply to the council for a creation or diversion order. The aim of the amendment is to build on some of the success that the parish partnerships have had in involving local users and landowners in their own rights of way network. That experiment, started by the Countryside Commission, in partnership with local authorities has been extremely successful. Many agreements were reached and that paves the way for a more even-handed approach to the creation of a network.

Amendment No. 381 A seeks to change the category of person, so that it is no longer restricted as it is on the face of the Bill, to any person being able to apply for a diversion order for the same reason. Of course, in this context, "person" may apply equally to, for example, a parish council.

In replying to the noble Baroness, Lady Carnegy, earlier in our Committee when she asked whether there would be more or less of a network, the Minister said that of course walkers will make their claim. But, as the Bill stands, walkers cannot be very creative with other local people because they are not able to apply for creation or diversion orders. These two amendments seek to remedy that.

Amendment No. 4028 is a consequential amendment which would remove the requirement for applicants making orders to issue certificates of their interest in the land. I beg to move.

Lord Northbourne

I support this amendment on the principle that I believe that we should approach the rights of way network with a positive rather than a negative attitude. I shall speak on this subject at greater length on one of our later amendments.

Lord Whitty

These amendments would give the public, or anybody, in effect, the right to make a formal request for a creation order. In most cases, those creation orders would be over someone else's land. Of course we wish to see the use of creation orders and the use of existing powers to create footpaths and bridleways and to develop new connections in order to create a whole new and clear network.

However, the question of anybody having the right of formal application raises wider issues. There is the question of who should pay for the compensation which arises out of the public path creation order. The amendment will also allow regulations to be made about how the applicant is to be charged for the costs of the order. However, it does not appear to make provision for any other costs.

The consultation paper which we issued last year set out the reasons for the inadvisability of giving people an express statutory right for formal application for creation orders. Public highways are for everyone's use and benefit. It is therefore more appropriate for the question whether new creation orders are needed for it to be the responsibility of the appropriate public authority.

That is not to say that other people will not have a say in local authority strategies; they will. They can make representations to the local authority. They are involved in the consultation process on the development of the local rights of way network and can make their points to the local authority. But it should be the local authority which takes the decision to apply for a creation order when, almost by definition, that will involve more than one other landowner. I therefore have some sympathy with the need to ensure that the public in general are involved in the process. However, I do not believe that formal applications is the way to do it.

Lord Bridges

I support the amendment. Like my noble friend Lord Northbourne, I believe in the need to extend the public rights of way network and in allowing citizens to express their view on what should be done. It is for the council to decide what to do with the application. To allow a citizen the right to suggest that a new right of way should be created seems to be democratic and the correct thing to do. I hope that the amendment will be accepted.

Baroness Miller of Chilthorne Domer

I thank noble Lords who supported my amendment. I believe that this group of amendments is forward looking and, as the noble Lord said, in future it will be citizens who will make applications. It will not be for the local authority to be judge, jury and promoter of the rights of way network. I understand that perhaps the amendment is somewhat before its time. For that reason, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 366: Page 61, line 8, at end insert— ("(3) In this section, "agriculture" includes the breeding or keeping of horses."").

The noble Lord said: Amendment No. 366 arises from commitments given in another place to consider an amendment tabled by the Opposition Front Bench. It relates to Section 29 of the Highways Act 1980 which requires councils to have due regard to the needs of agriculture and forestry when making orders creating, diverting or closing rights of way.

The amendment would simply extend the definition to include the keeping or breeding of horses. I beg to move.

On Question, amendment agreed to.

[Amendment No. 367 not moved.]

[Amendment No. 368 had been withdrawn from the Marshalled List.]

Baroness Miller of Chilthorne Domer moved Amendment No. 368A: Page 61, line 14, at end insert — (" . After section 118(2) of the 1980 Act there is inserted— (2A) The Secretary of State, or a council, as the case may be, shall not confirm a public path extinguishment order unless he, or as the case may be they, are satisfied that it is expedient to do so having regard to—

  1. (a) the relevant local highway authority's strategic objectives for their local rights of way, as set out in its rights of way improvement plan; or
  2. (b) any other changes to the rights of way in the area, either proposed or having been made within the last five years, and whether these would adversely affect the overall extent of the public rights of way in the area or the use and enjoyment of those rights of way by the public."").

The noble Baroness said: Amendment No. 368A and the other amendments in this group continue the theme of trying to ensure that we do not end up with a diminished network. The purpose of the amendment is to allow an authority or the Secretary of State to take into account the wider impact of any proposed changes when determining a public path order.

It would, for example, allow an application to be rejected if it were contrary to overall improvements set out in a rights of way improvement plan. As the law stands, and as it would if the Bill continues unamended, each application has to be decided on its own merits rather than in the setting of a rights of way improvement plan. We believe that approach to be wrong.

We are concerned that Schedule 6 will result in a diminished network. Our amendment would allow a much wider impact of closures and diversions on the rights of way network to be taken into account. Even a small and relatively unexceptional application could be rejected because of the overall degradation in the quality of the network. I am sure that noble Lords can think of examples where a small application might result in large parts of the network being much less well connected with each other.

In speaking to Amendment No. 368B, I shall speak also to Amendments Nos. 369A, 370, 380A, 380B and 382. These amendments would allow certain categories of landholder—now extended to horse owners—to apply to close or divert rights of way. Consequently, local authorities are likely to fast-track those changes to the network because they have to be processed within specific periods of time, whereas creation orders will be given a lower priority, thus reducing an authority's ability to implement rights of way improvement plans. Again, we feel that that could lead to a net loss of both the quantity and the quality of the network.

Finally, Amendment No. 370 deals with the replacement of the word "four" with "twelve" in Schedule 6, and seeks to give local authorities longer in which to process applications. As it stands, the biggest outcome of the Bill will be a total gridlock in the rights of way legal and administrative processes, which are bad already. As the Bill stands, those processes are likely to become more difficult, because the Bill will introduce a firm process for landowners. That does not necessarily mean that the criteria will be satisfied on any path diverted or extinguished, but it will certainly mean that highways authorities have little discretion as to whether or not to process an application in a short timescale and reduced discretion to decline an application.

The likely outcome is that an already over-burdened system will be completely clogged up. Applications to add missing highways to the definitive map will necessarily take much longer and a great deal more research and preparation will be required than in the case of diversions and extinguishments. Therefore they will follow a long way behind and be subject to even more delay. We feel that we already have a cut-off date. Surely local authorities could be allowed 12 months as opposed to four months, especially where we are trying to secure a more consultative process. Four months barely allows time to consult with parish councils, given the cycle of their meetings. This group of amendments seeks to guard against the network being considerably diminished. I beg to move.

Lord Northbourne

I rise again in a sense to support the amendment. However, I have difficulty with the position of the Liberal Democrat Benches as they seem to be saying, "Yes, we want everything we can get. But we are not going to give anything". We must have both give and take if we are to move forward in improving rights of way. If I am mistaken, I apologise to the noble Baroness, Lady Miller. But if the intention is to obtain a fair balance between give and take, I support the amendment.

Baroness Scott of Needham Market

Perhaps I can respond briefly to that remark. From the comments we have made on these Benches this evening, I can understand why the noble Lord, Lord Northbourne, makes those remarks. Our difficulty is when looking at Part II as a whole. A number of proposals, taken individually, erode some of the rights of users, but, when taken as a whole, those proposals represent a significant erosion of rights and that is what concerns us.

I should perhaps add at this point that we sympathise with landowners. After all, they do not all own huge tracts of land. In terms of rights of way, the term "landowner" may include someone who has a house with a right of way running through the back.

During earlier debates, it struck me that we have a problem with the search process which people undertake when buying houses. Part I searches do not reveal the existence of a public right of way, so many people are in ignorance of the fact that one runs through their property. Many issues which are unrelated to the Bill are related to rights of way and there is an uncertainty for landowners.

I suggest that we ought to consider a cut-off date. Whether that be 10, 15 or 25 years ahead, there will be a significant number of unresolved claims leaving landowners in uncertainty.

11 p.m.

Baroness Byford

I rise to express my slight concern about Amendments Nos. 368B and 369A. While we may agree that any person with an interest in the land should be able to apply for an extinguishment order, the proposal appears to go way beyond those with a legitimate local interest in the land. It could run the risk of producing continuous vexatious applications from those without direct interest in the local land about which they are objecting. Therefore, we have reservations about the amendments and wait with interest to hear what the Minister has to say.

Lord McIntosh of Haringey

One thing the Minister must say relates to time limits. The noble Baroness, Lady Byford, mentioned her slight concern but her amendments, which have been ungrouped and must be considered separately, go entirely in the opposite direction from those tabled by Liberal Democrat Members. I wanted to talk to them altogether but they are not reconcilable.

I shall begin by talking to Amendments Nos. 368A and 380A, because I understand the motives behind them. They relate to the power to confirm orders under Sections I 18 and 119 of the Highways Act 1980 closing or diverting footpaths and bridleways. In the first instance, the order would have to be considered in the light of the strategies in the relevant rights of way improvement plan prepared under Clause 56 of the Bill.

The second element of the amendment would set a more difficult test for a confirming authority to assess and it is difficult to see how it would work in practice. First, a detailed balance sheet would have to be kept of all the changes made to the rights of way in a particular area and then the authority would have to evaluate the effect of all those changes and how that might affect an individual proposal.

This could be an impossible task as the decision would have to take into account not only rights of way which could be many miles away from the footpath or bridleway in question—for instance, at the opposite end of a large county—but also any applications for orders in the pipeline and the effects of the previous five years'-worth of public path orders in any area, including creations, diversions and extinguishments for planning and development purposes.

However, I acknowledge the fact that the amendments seek to ensure that decisions on individual changes to rights of way are made within the context of the wider local network of which each right of way is a part. The Government are not prepared to accept both the amendments, which in our view go too far, but we are prepared to consider the first element which would expressly confirm that the objectives of an authority's plan should be a material consideration in decisions on confirming public path orders. I hope that on that basis the amendment will not be pressed.

I turn to Amendments Nos. 368B, 369A and 3808. I should have liked to talk at the same time to Amendments Nos. 381A and 402B, which are the Liberal Democrat amendments, but the grouping does not allow that. However, I hope that I shall be able to cut short my comments on the later group.

We have already debated Amendment No. 381A, which relates to the issues in these amendments. We have thought very carefully about who should have a right to apply for public path orders. Those who depend on their land for an income need to be able to manage their land productively to gain a reasonable economic return. Generally, the public's use of rights of way should not prevent a landowner from managing his land successfully, but we are aware that circumstances arise in which, for example, the diversion of a path is in the land manager's interests and has no significant adverse effect on the interests of the public. More rarely, there may be instances in which a path is no longer needed by the public and may, therefore, be considered for closure. The proposals in the Bill are meant to be used in just those circumstances, in recognition of reports of the difficulty that some landowners have experienced in obtaining such orders. In such cases, proposals will be considered on their merits. The public will still be able to object to closure and diversion orders and have their views heard by an inspector.

We, therefore, believe that there is a case for making an exception to the general rule that decisions on changes to highway networks, whether footpaths and bridleways or other highways, should be for public authorities to promote. Local authorities will in any case have to consult publicly on their strategic decisions about rights of way during the preparation of the improvement plans required by Clauses 56 and 57, so there will be ample opportunity for members of the public to contribute views on changes to their local rights of way networks in addition to the opportunities which they already have under Schedule 6 to the Highways Act. I hope that on that basis this amendment will not be pressed.

I turn to Amendments Nos. 370 and 382. These amendments relate to the period which must elapse before an applicant for a stopping up or diversion order can apply for a direction requiring the relevant council to determine the application. The amendment would apply both to applications by land managers for orders under Sections 118 and 119 and by schools for orders made under the new Sections 118B and 119B. I acknowledge that there is a difference between the four-month period for applications for public path orders and the 12-month period which applies to applications made under the Wildlife and Countryside Act 1981 for orders modifying the definitive map. However, the Government believe that four months is an appropriate starting point within which decisions may be arrived at as to whether to make a closure or a diversion order.

I heard the observations of the noble Baroness about consulting parish councils. In some counties there may be problems in consulting district councils. Surely, all of these matters can be done concurrently rather than consecutively. I would have thought that four months was a reasonable period. The issues to be considered are substantially different from the complex task of assessing evidence submitted in support of an application for a definitive map order. In many cases the authority may have to undertake additional research through old archives before it is in a position to decide whether there is sufficient evidence to justify adding a right of way to the map. I do not accept that local authorities will be diverted from their duty to record rights of way on definitive maps by the new provisions in Schedule 6. They should have no reason to claim lack of funds because the Government will provide additional funding for these new responsibilities. I have already given that response in answer to separate questions.

Although we have listened carefully to the arguments, we are not convinced that the four-month period set out in the Bill is unreasonable. I hope that, on the basis of the positive answers that I have been able to give to some of the proposals in this group, the amendments will not be pressed.

Baroness Miller of Chilthorne Domer

I thank the Minister for his reply. I particularly welcomed the positive comments of the noble Lord, Lord Whitty, about government funding, which have been repeated by the noble Lord, Lord McIntosh of Haringey. That will be a great relief to a large number of local authorities and will reduce the number of problems which arise from the four-month period. Adequate funding can work wonders.

I understand the Minister's reasoning on land management issues. I particularly thank him for his comment that the first element of my amendments may form a material consideration. That goes a long way to meet our worst fears about Part II; namely, that it shall result in no net loss. If the result of applications can be regarded as a material consideration that will make a considerable difference, and I look forward to the Government's amendment to deal with that. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran moved Amendment No. 368AA: Page 61, line 14, at end insert— (". In section 118(2) of the 1980 Act, after "section 121(2) below" there is inserted— , and having regard to the likely effect of any dedication under section 25 of this Act which is conditional on the stopping-up order being confirmed"").

The noble Lord said: The amendment seeks to link creations to extinguishments. At present a landowner cannot with any confidence agree with an authority that he will not object to the creation of certain paths on the basis that other paths, made redundant by the creation, will be extinguished. The reason for that is that any member of the public can raise objections to a public footpath order. Given that objections may be raised to the extinguishment but not the creation, it is possible that the creation could be confirmed without the associated extinguishment. That problem does not encourage sensible modernisation of the path network by agreement; for example, to create through routes or circular routes advantageous both to the public and the landowner.

Under Section 25 of the Highways Act 1980, a landowner can dedicate a path to the public subject to the condition that the dedication will take effect only if an associated extinguishment is confirmed. Section 25(4) states: An agreement under this section shall be on such terms … or otherwise as may be specified in the agreement".

The amendment would make it explicit that this factor could be taken into account in the decision on whether the paths should be extinguished by an order under Section 118 of the Highways Act 1980.

The amendment would establish a further link between the creation of a new, useful path to the public in exchange for the extinguishment of an existing path of less value to the public. Wider use of such arrangements could in many cases—obviously not all—help to speed the development of a network better attuned to modern recreational land management and environmental needs.

The existing provisions seem in theory to be flexible enough for a deal to be struck by making dedication under Section 25 dependent on a particular extinguishment. However, the amendment would improve and clarify the position.

Perhaps I may speak also to Amendment No. 369 and to Amendment No. 381 which is to Schedule 6, both of which enable any landowner to apply to extinguish or divert paths. New Sections 118ZA and 119ZA, which grant certain landowners a right to apply for an order to extinguish or divert rights of way, are welcome. However, the right of application is available only to owners of agriculture and forestry land and land used for the breeding and keeping of horses.

The provisions accordingly fail to respond to the legitimate needs of other landowners who have genuine grounds for wishing to close or divert rights of way across their land. Examples of owners who may, but do not necessarily, wish to seek extinguishment or diversion orders could include the owners of gardens; land used for clay pigeon shoots; land used for shooting that is not grazed—for example, some grouse moors; land used for hang-gliding by gliding clubs or as aerodromes; land used to exercise horses—gallops, which we discussed previously; or golf courses, which were also previously discussed.

The amendments would remove the limitation that only those owners of land used for farming, forestry or the breeding or keeping of horses may apply for an order. The amendments are understood to have the support of the Countryside Council for Wales. That was mentioned in its briefing on the publication of the Bill. I beg to move.

11.15 p.m.

Lord Northbourne

I rise to speak to Amendment No. 419. I understood that I was to move Amendment No. 368AA. I would not have spoken to the amendment in the same terms as the noble Lord, Lord Glentoran, and I am now rather sorry that my amendment is grouped with the Conservative amendments as they approach the issue too much from the point of view of the landowner. I shall be delaying the Committee for four or five minutes to introduce my amendment because I believe that it involves a point of principle. It is an opportunity to urge a positive approach to the improvement of the rights of way network in this country.

The object of Amendments Nos. 368AA and 419 is to make the legal process less cumbersome and expensive in cases where all the parties have agreed to a scheme to improve a route or to create a circular walk that involves several different rights of way. It is an enormous achievement that over the past 50 years the Ramblers' Association, of which I am proud to have been a member, has preserved intact the traditional rights of way network in this country. It deserves enormous credit for doing so. But no human institution can remain in tablets of stone for ever. There is a need for change now. Has not the time come to move forward?

People's lifestyles today are very different from those of people 50 or more years ago. Today people have cars. They walk less to get from one place to another. What members ofthe public want today, both for pleasure and for health, is to be able to enjoy circular walks which start and end near their homes or in a convenient car park. Such walks invariably include two or more rights of way. The law says that a right of way has to go from point A to point B, so a right of way cannot go in a circle. If we want to create circular walks, we have a problem of working on a system of rights of way rather than on a single right of way. We need new machinery in highway law to make it possible to make positive changes to and improve a group of rights of way when everyone agrees that such a change is desirable.

I am confident that the Ramblers' Association will rise to that challenge. I hope that it will be prepared to take a lead with the local highway authorities in promoting and developing circular walks for the pleasure and health of all walkers. Incidentally, the health arguments for promoting more opportunities for people to take exercise by walking in the countryside are compelling. If we reach Amendment No. 416 in the early hours of tomorrow morning, noble Lords will again hear me speaking eloquently on that subject. It is fundamentally important.

Some local highway authorities have been successful in creating circular walks but the vast majority have not. The reason for that is clearly set out in a letter which Ireceived from the environmental health officer of my own county, Kent. He said: I can confirm that Kent County Council believes that the existing legal framework can indeed be difficult and expensive, and … laborious. At present, developing new circular walks is dependent on utilising the existing legal framework and therefore the existing PROW"— public rights of way— network. If links can not be made in this way, and they usually can't, alternative new routes must be found. To do so, there are three options, all of which are cumbersome, expensive and unsatisfactory … Wholesale changes, or what may be termed nationalising the network, are difficult to implement and hugely time consuming. They will attract objections … They are not a 'duty' of the Highway Authority". Some highway authorities have been criticised by the Commissioner for Local Administration because they have spent money on this non-duty activity rather than on activities which are statutory. The letter continues: My head of Rights of Way … tells me that wholesale changes are simply not an option under present legislation, since there aren't the resources available in terms of manpower and the potentially huge legal costs that would ensue". The amendments to which I am speaking, and in particular Amendment No. 419, certainly would not solve all those problems, but they might represent a start.

Amendment No. 419 would make it possible for a local highway authority to designate a coherent group of changes as an omnibus scheme. It would then be incumbent on the authority and the inspector—if one were involved—to consider the scheme as a whole rather than piecemeal. Objectors would retain the rights they hold today. If the amendment were to be adopted, it would help to simplify and speed up the process, as well as help to reduce the cost of providing circular walks. Furthermore, it would make it more likely that authorities would be willing to promote such schemes.

I understand that the Minister has doubts about how exactly my proposals would work. I have no pride of authorship. If the Minister does not like the wording I have used in my proposals, I challenge him to bring forward other provisions which would achieve the same objectives.

Baroness Mallalieu

I rise to support the spirit of Amendment No. 419, just spoken to by the noble Lord, Lord Northbourne. As it stands, Part II of the Bill is, to my mind, a disappointment. Indeed, the noble Lord, Lord McIntosh, spoke earlier with his usual candour. When he was asked a direct question about whether Part II would extend the bridleway and footpath network in this country at all, he was unable to say that it would. One thing that the Bill ought to achieve is to increase positively access in those areas—many of them far away from open access land—where the greatest pressures are exerted and there is the greatest need for the kind of circular walks referred to by the noble Lord.

If the proposal before us is considered to be unworkable, and even with the short amount of time available to improve this part of the Bill, I hope that the Government will come forward with or at least be receptive to truly imaginative schemes for increasing walks of this kind in areas far removed from open access land. They are desperately needed.

A Bill of this kind probably represents a once-in-a-generation opportunity to review the bridleway and footpath network of this country. If it leaves this House in its present state, we shall have wasted that opportunity to achieve something positive.

Baroness Miller of Chilthorne Domer

I rise briefly to say how much I endorse the spirit of the amendments and also to support much of what has just been said by the noble Baroness, Lady Mallalieu. She is absolutely right to point out that we should be seeking opportunities of this kind. It is the kind of development the public will expect to see as the result of such a dramatic legislative review of rights of way represented in the Bill.

Lord McIntosh of Haringey

Perhaps I may observe to my noble friend Lady Mallalieu that I spoke not with candour, but rather with caution. Of course we want the provisions in Part II of the Bill to increase the amount of access for walkers on rights of way. We wish to simplify the law relating to right of way and to remove obstacles to the growth of new rights of way. However, I needed to respond to the direct question of whether I could guarantee that. I had to say that I could not guarantee that, which reflects the necessary caution expected of those who speak from this Dispatch Box. That does not mean that we are not sympathetic to any practical way of improving the situation. I gave a number of examples of ways in which we are improving the present position.

The leading amendment in the grouping, Amendment No. 368AA, would require that, in deciding whether to confirm an order under Section 118 of the Highways Act 1980 covering the closure of a footpath or bridleway, the confirming authority should have regard to any public path creation agreement between the landowner and a local authority which is conditional on the success of the extinguishment order.

It may be that the existence of such an agreement, conditional or otherwise, is something which the confirming authority could consider when assessing the extent to which the path would be likely to be used by the public. There could be a range of factors for the confirming authority to take into account, depending on the circumstances of each case. We do not see why special weight should be attached to the existence of a creation agreement. The tests for confirmation of public path extinguishment orders made under the provisions in the Bill are the same as those under existing legislation, and for good reason: they are fair all round, adequate, rigorous and have stood the test of time. We hope that the noble Lord, Lord Glentoran, will not press the amendment.

Amendments Nos. 369 and 381 would widen the right to apply for certain closure and diversion orders beyond a level which the Government consider acceptable. The rationale for the Bill's provisions was set out in the consultation paper, which explained that the primary objective was to overcome the difficulties experienced by land managers in obtaining diversions in the interest of the efficient management of their business, even where there was no apparent detriment to the public interest. That proposal did not go down well; half of the respondents were opposed to it. But we believe that there is a good case for a provision to assist those concerned to manage their land productively to gain a reasonable economic return.

The scope of the provisions is drawn as widely as we believe to be reasonable. It covers all land which is used for agricultural purposes, for forestry and for the keeping and breeding of horses. The term "agriculture" as defined in Section 329 of the Highways Act includes a wide range of activities—for example, horticulture, fruit growing, use of land as market gardens and nursery grounds, seed growing, the breeding and keeping of livestock, and so on.

In these provisions, the Government have sought to strike a reasonable balance between the interests of the public and those of people with rights of way across the land on which they depend for an income. These provisions have not been popular in all quarters and many organisations representing users of rights of way have criticised the whole of Part II of the Bill—indeed, I have heard that today—as being more concerned with closing rights of way than improving them. We do not accept that. We believe that the overall balance is about right and that it will generate improvements to the rights of way system, but we would be unwilling to extend the provisions in new Sections 118ZA and 119ZA beyond their current scope.

Amendment No. 419 was spoken to by the noble Lord, Lord Northbourne. The amendment seeks to enable local authorities to make schemes comprising a number of public path orders—which would come to be confirmed as a whole or not at all—where the desirability of improvements to their rights of way network has been identified in their rights of way improvement plan. The noble Lord contends that this would be useful in ensuring the success of schemes for circular walks.

I am by no means opposed to circular walks. I was brought up on the little books brought out by London Transport just before the war—threepence each, they were—which described walks around London by tube or by bus. As a child I remember going on a number of these walks. The idea that one could come back to the same place and get the bus back from Potters Bar or wherever was very attractive. However, the noble Lord's suggestion sits awkwardly with the existing procedures for making public path orders, which also underpin the new public path order powers in the Bill.

The noble Lord cited the Ramblers' Association as supporting the amendment. In my briefing from the Ramblers' Association it says that the amendment to introduce omnibus path order schemes should be resisted. The value of rationalisation schemes has been questioned by the Commissioner for Local Administration, and they have an unhappy and costly reputation. The noble Lord should go back to his advisers on that.

The existing procedure is regarded generally as fair and open. It provides for anyone with an interest to object.

Lord Northbourne

My expressions were more of hope than confidence.

Lord McIntosh of Haringey

I understand that. It is important for inspectors to be independent. We do not want to restrict their powers, for instance, by preventing confirmation orders which otherwise meet the statutory requirements. We are not against the concept of circular walks, as I said, but the system works now. It is not always necessary to use order-making powers. Public footpaths and bridleways can he created by an agreement with the landowner; permissive paths, which we discussed earlier, may form links in a scheme where an owner would rather not have a permanent public right of way. Most public path orders are confirmed without the need for referral to an inspector for a decision on behalf of the Secretary of State. The existing criteria provide that when considering concurrent public path creation and extinguishment orders, an inspector may, when deciding whether to confirm the extinguishment order, have regard to the extent to which the creation order would provide an alternative right of way.

We believe that the existing legislation provides adequately for the kind of schemes that the noble Lord. Lord Northbourne, has described, and I hope that he will not press further for a change to it.

11.30 p.m.

Lord Northbourne

Before the Minister sits down, I shall not press the amendment at this stage but I shall bring it back later, because, alas, I do not believe that what he is saying corresponds with the facts. I believe that I am right in saying that Kent County Council has over 300 desirable schemes pending which the present legal situation has made it too difficult and expensive to get through. I shall attempt to obtain more information about this and shall correspond with the Minister before the next stage of the Bill. However, it is part of my credentials that I am taking my work on a walking holiday between the Committee and Report stages.

Lord McIntosh of Haringey

If that means that we shall not be able to meet and talk about the matter, I am sorry. I shall be glad to receive any representations that the noble Lord wants to make.

Lord Glentoran

This has been an interesting debate. I was sorry that the noble Lord, Lord Northbourn, regretted that his amendment was grouped with my amendments, because in essence and in principle I agree to a large extent with what he is proposing. Our information accords with what the Minister said as regards the Ramblers' Association. We certainly understood from the briefings that we received from the association that it was not in agreement with the circular routes at all. On the other hand, other—

Lord McIntosh of Haringey

The association is not objecting, as I understand it, to circular walks. Everyone is in favour of circular walks. The association was worried about the particular provisions for omnibus schemes.

Lord Glentoran

I understand that. The group wants more freedom; it does not want any restrictions.

We also understand from our briefing that a large number of people—I do not know what the percentage is, but it is quite high—want to be able to walk within five miles of their starting point and to return to it. So there is a great deal to be said for the omnibus system. We have no objections to it.

My amendments were, again, an attempt to make it easier to structure new creations and to negotiate with landowners and land managers as regards changing the directions of footpaths, streamlining them and bringing them up to modern day requirements.

Now that I have listened to the debate, I wonder about the amendment that I moved and clearly withdrew, and which was spoken about strongly by the noble Baroness, Lady Miller, regarding the need for a strategy on the part of local authorities. If we are to move the footpath network forward—which I believe we all want to do—someone needs to get behind it, plan it and develop a strategy in respective areas so that these proposals can begin to be made to work.

Baroness Miller of Chilthorne Domer

I should like to clarify this point. I do not think that I have ever spoken against the rights of way improvement plans. The point I made related to open access management plans. I said that local authorities did not need another statutory plan in order to manage open land properly. I certainly have no objections to rights of way improvement plans as they are written into the Bill. I believe that it is the other plans to which the noble Lord, Lord Glentoran, refers.

Lord Glentoran

I thank the noble Baroness for that intervention. I understand that she supports the local authorities' role in footpath planning. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 368B to 370 not moved.]

Baroness Byford moved Amendment No. 370ZA: Page 61, line 48, leave out ("four months") and insert ("eight weeks").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 381B and 382A. Amendments Nos. 370ZA and 382A relate to the Secretary of State requiring a council to get a move on and decide on an application made by an applicant for the extinguishment or diversion of a public path. Under the Bill as it stands, the council will already have had four months in which to reach a conclusion. Under planning law councils have to respond within eight weeks to an application. This amendment is intended to reduce the confusion and/or to shorten the time taken.

Amendment No. 381B deals with the extinguishment or diversion of footpaths. Under the Bill, the new Section 118ZA(1) to the 1980 Act will allow application for a public path extinguishment order without condition. However, new Section 119ZA(1) states that an application for a diversion order must comply with the condition that, in his interests it is expedient", for the council to make the order. Not only is this arrangement untidy, but it also implies that the council could refuse a diversion order because an officer considered that it would be more expedient in the interests of the applicant. This is a probing amendment for the purpose of clarification. I beg to move.

Baroness Scott of Needham Market

I do not wish to go over too much old ground in this respect, because we covered much of this argument earlier. I should just like to add to the comments made by my noble friend Lady Miller. If one is to suggest that local authorities should get a move on and put a date on the process, it seems to us to be wrong that one set of dates and parameters apply to those applying to divert or extinguish rights of way, whereas another set applies to those who seek to modify the map in terms of higher rights or for implementing a new right. That is what we cannot understand.

We could have tabled amendments to reduce both periods to four months, but we chose to go up to 12 because of the consultations and the arguments that have already been rehearsed by my noble friend Lady Miller. From our point of view, we still have trouble understanding the inequity of the two provisions despite the Minister's earlier reply.

Lord McIntosh of Haringey

I do not have very much more to say about Amendments Nos. 370ZA and 382A. I am sorry that my response to the attempt to lengthen the period was not entirely satisfactory. However, I hope that my resistance to the attempt to shorten the period will be less controversial. Of course, eight weeks is the time set within which to determine applications for planning permission. But there is no exact parallel with public path orders because local authorities have been encouraged to undertake consultations in order to save time in the long run. The point was made about parish councils and, where appropriate, about district councils, which we have to take into account.

We believe that four months is a reasonable period to allow for consultations and for an informed decision to be made. As to planning applications, I am afraid—at least in my authority—the eight weeks' period is more honoured in the breach than in the observance. Indeed, on many occasions when planning applications come forward, you make your response and the next thing that you hear is that those concerned have asked for extra time.

Amendment No. 381B is a different matter. Section 119 of the Highways Act 1980 enables a local authority to make an order diverting a footpath or bridleway when it is in the interests of people whose land the path crosses. Local authorities can also divert a path in the public interest. This amendment would allow a land manager to apply for a path to be diverted where he considered that it was in the public interest.

There is nothing to prevent land managers or anyone else simply requesting a local authority to divert a path when they think that this will be in the public interest. Indeed, local authorities must consider these requests. However, the Government see no reason why the formal procedures for applications and appeal should apply to such cases. We have debated the provisions in the Bill which give land managers the right to make applications and I have explained the Government's reasoning for departing in these circumstances from the general rule that changes to rights of way should be for the responsible public authorities to initiate. The application provisions are designed to ensure that where changing a right of way would facilitate the efficient use of the land for agriculture and the other purposes set out in the Bill, and do so without an adverse effect on the wider public interest, the case is thoroughly considered.

Amendment No. 381B would significantly widen the scope of the provisions beyond that which we are persuaded is necessary.

Baroness Byford

I thank the Minister for his response which I shall read carefully. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Principal Deputy Chairman of Committees (Lord Tordoff)

In calling Amendment No. 370A, I advise the Committee that if it is agreed to, I shall not be able to call Amendments Nos. 371 and 372 due to pre-emption.

Baroness Scott of Needham Market moved Amendment No. 370A: Page 62, leave out lines 25 to 32.

The noble Baroness said: In moving Amendment No. 370A, I wish to speak also to the amendments with which it is grouped. This set of amendments concerns the introduction of the special extinguishment orders for the purposes of crime prevention.

The objective of reducing crime is one which I am sure we all support. However, I have never seen or heard any real evidence to show a direct link between levels of crime and the existence of public rights of way. In rural areas it is widely accepted that rising crime levels are due at least in part to the existence of an improved road network and faster cars. They facilitate a mobility among the criminal fraternity which was undreamed of 50 years ago. No one is suggesting that we should start to close roads. In fact, in some quarters the cry is for the opposite course of action. Therefore, to suggest that public rights—many of which have been enjoyed for centuries—should be extinguished to counter a perception that they somehow abet criminals is a strange concept which I am sad to see in the Bill.

As regards urban areas, and particularly urban fringes, public rights of way often form an important part of the off road transport infrastructure. At present we are trying to encourage the use of that infrastructure and the use of sustainable modes of travel. It seems to me that all too often where public rights of way have been developed around or sometimes even over other land, little regard has been paid to preserving their character. They have been surrounded by high walls and fences. As they are narrow and have no lighting, it is perhaps not surprising that people think that they are dangerous, even if they have no evidence to prove that. I hope that the provision of better lighting, CCTV and other such measures can be explored before paths are extinguished as once they are lost it is virtually impossible to get them back.

I repeat that I am concerned that these provisions could be used further to erode the rights of way network and yet have no effect on crime levels. I have tabled the amendments to probe the Government's thinking on the issue. I hope that the Minister can allay the fears of those of us who think that, perhaps for spurious reasons, rights of way will be lost with no benefit to the community in terms of a reduction in crime. I beg to move.

Baroness O'Cathain

I should like to make two points. First, there is a general feeling, particularly in country towns, that with the increased use of CCTV in car parks, shopping centres and streets, crime is moving out from those places. People feel that the increase in CCTV encourages crime to move to areas where CCTV is not used.

Secondly, with increasing affluence in rural areas, there is more to steal in those areas. Many people have second homes in rural areas. Some cottages are now quite palatial. Many people keep pictures, works of art and various valuable items in cottages which up until relatively recently—30 or 40 years ago—were purely workmen's cottages.

Friends involved in the legal profession in Sussex are concerned that over the next few years there might be an even greater move of crime from the smaller towns, where there is increased surveillance, into the rural areas. The noble Baroness referred to the increased use of CCTV, I presume along the rights of way in rural areas. I do not think that that will be feasible.

11.45 p.m.

Baroness Scott of Needham Market

I was talking about rights of way around urban fringes.

Baroness O'Cathain

I thank the noble Baroness for putting me right. I believe that we are being somewhat complacent if we think that the increasing use of rights of way could not lead to an increase of crime in rural areas.

Lord Whitty

That exchange reminds us that we must regard the rights of way as being as much in urban as in rural areas. Therefore these provisions have to cover potential crime in both such areas.

I agree with the noble Baroness, Lady Scott, that we should use these powers sparingly; and that we should not use the fear of crime as a general means of restricting the rights of way. Nevertheless, we have to have some powers in this area.

I deal with Amendment No. 376. I do not think that there is much between us on the need to have measures to protect schools. Amendment No. 376, Which would set an additional test to be met before an order could be confirmed, relates only to orders closing rights of way, not diversion orders. Therefore it would allow rights of way to be diverted where they cross school premises. However, only a small minority of schools are likely to need recourse to these powers. Moreover, the Bill already contains a number of conditions to be met before an order closing a right of way may be made.

We are not persuaded that additional tests are needed. The additional factors set out in the amendment may in some cases be difficult to apply. For example, I am not sure that whether premises predate a highway is the relevant issue. If there is a case to protect premises against crime it does not much matter whether the building was built before or after the highway was established.

The purposes of the provisions in Schedule 6 are to deal with problems which arise now, irrespective of the provenance of a right of way. It seems sensible that they are not confined by the provenance of the right.

The use of the separate provisions in new Sections 118B and 119B for closing or diverting rights of way to prevent crime in designated areas should never be a first option. As the noble Baroness, Lady Scott, says there are many other ways of dealing with such problems. Nor can it be easy. This requires a designation by the Secretary of State. It is not available to the local authority or the local police authority. In some areas the geography of rights of way can generate levels of opportunistic crime which may undermine policies aimed at dealing with problems of social exclusion. But they will be relatively rare and the procedure would ensure that they are used only sparingly.

As originally introduced, the powers provided under these clauses related only to designated urban areas. However, arguments deployed by both parties in another place persuaded the Government to widen the provisions by removing the word "urban". That is a slightly different approach from that taken in the amendment by the noble Baroness, Lady Scott. As the Bill stands, it is clear that orders may be made only in order to tackle high and persistent levels of crime in designated areas arising from use of a right of way.

Additional tests must be taken into account by the confirming authority, such as whether an order would be consistent with any crime prevention strategy prepared under the Crime and Disorder Act 1998. The option of diversion rather than closure must also be considered.

The provisions are limited and would require a pretty rigorous procedure before they could be triggered. They are there to deal with situations of high crime, high potential crime and persistent crime. It is important that people are assured that we have those powers for use when necessary.

This is a question of balance. The powers would be used sparingly. We believe that we have got the balance right. I hope that the noble Baroness will not pursue her amendments.

Baroness Scott of Needham Market

I am grateful for that reply and take some comfort from the fact that the measures will be a last resort and that there are a significant number of tests to be gone through. However, I remain a little concerned that the existence of the provisions in the Bill helps to generate a perception that there is a link between public rights of way and crime, which is far from proven. However, I take some comfort from the Minister's remarks and with that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton

I beg to move that the House do now resume.

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

House resumed.

House adjourned at ten minutes before midnight.