§ (" .—(1) Where a way across a common or village green has been used as of right prior to 3rd November 1979 as a vehicular access to a dwelling-house, the dwelling-house shall be deemed, unless otherwise entitled, to have the benefit of an easement for the passage of mechanically propelled and other vehicles along the way.
§ (2) Subject to subsections (3) and (4), upon the first occurrence of a relevant event in respect of the dwelling-house, any person who immediately before that event held the benefit of a right created by subsection (1) shall pay a reasonable proportion of the value of the dwelling-house to the owner of the common.
§ (3) No sum shall be payable under subsection (2) if the use of the way to access the dwelling-house (or a dwelling-house in a similar position) began before 1st December 1930.
§ (4) Subject to subsection (3), the proportion payable under subsection (2) shall not be greater than 2.5 per cent.
§ (5) Where an easement is granted by express agreement to create a vehicular right of way across a common or village green to a dwelling-house, the owner of the dwelling-house shall not be liable to pay a sum greater than 5 per cent. of the value of the dwelling-house at the date of the agreement for a way from his property to the nearest convenient highway.
§ (6) Any dispute as to any sum payable under this section shall be referred by agreement to arbitration or referred to, and determined by, the Lands Tribunal.
§ (7) If no relevant event has occurred the sum referred to in subsection (2) shall be payable 30 years after the coming into force of this section.
§ (8) The owner of a dwelling-house may at any time prior to the occurrence of a relevant event make a payment as if it is a payment under subsection (2).
§ (9) In this section— "owner", in relation to any land, means any person, other than a mortgagee not in possession, who, whether in his own right or as trustee for another person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;
§ "relevant event", means—
- (a) transfer of the freehold ownership,
- (b) creation of a lease for a period greater than 21 years,
- (c) if the owner is a company, any change in the ownership of the company.").
§ The noble Earl said: This amendment seeks to address the problems which have arisen over charges for vehicular access over common land. It is an issue which has caused great consternation to a large number of householders who have driven across commons without hindrance for many years. Some will have driven across them for 70 years or more and have only recently discovered that in all that time they had no legal right to do so. They are now in some, but not all, cases facing unexpected and high charges for access from the common owner.
§ The problem stems from the Law of Property Act 1925 and from subsequent road traffic Acts. The Law of Property Act 1925 provided for owners of commons to execute a deed of public access to their common 429 land for the public to walk on it. In return, the landowner was allowed to restrict vehicles and consequently, of course, the landowner had the right to charge for access. The position was aggravated in one sense by the road traffic Acts from 1930 onwards which made it a criminal offence to drive over common land without the owner's permission.
§ I am sure that the legislation was not intended to disrupt existing access arrangements. It is clear that the purpose was to prevent people driving across commons—a worthy objective. Many owners behaved thoroughly responsibly—I refer to the National Trust which has already been mentioned in another context—and did precisely what should have been done in 1925 and 1930 and granted rights, licences or entitlements of one kind or another to allow people (presumably for a one-off payment) to have access to their households. That was a perfectly reasonable way to behave. However, in a number of cases the owners of the commons simply said, "We know you drive across the commons. We shall not disrupt the arrangements. Your house may have been there for several hundred years, or at least 50 years, and we shall not disrupt the arrangements", and they did not. The position is further complicated by the fact that no one knows who owns a large number of commons anyway. Therefore if a householder tried to get an entitlement to access to his house in those circumstances he would not get far as there is no one to grant that entitlement.
§ As I say, the position remained unexceptional for the householders until the 1990s. Partly as a result of the 1993 Court of Appeal case, Hanning v. Top Deck Travel Ltd, it became evident that people who thought that they had a prescriptive right of access to their houses because of long use of such access did not have that right at all for the simple reason that as soon as it became a criminal offence to drive on the common land one could not acquire a prescriptive right as a result of a criminal act. Suddenly people faced charges from owners who woke up to the fact that they had a nice earner on their hands. People who for 70 years or more had failed to charge people for access to their houses realised that they now could and that they could send in the bill 70 years later and there was not a thing the owner of the household could do about it. They were trapped. They found that the prescriptive rights which their professional advisers had told them of did not exist. Presumably the houses had changed hands and the issue was never raised by vendors' solicitors, purchasers' solicitors, mortgage providers or valuers. These people were no doubt remiss. They did not pick up on the point that the prescriptive rights could not exist as a result of road traffic Acts which made such access a criminal offence. As noble Lords will realise, it is a great shock for a number of these householders to find that they are suddenly presented with a bill after 70 years or more. Sometimes the bill for the access roads amounts to up to 10 per cent of the current value of the property.
§ I do not say that it is a widespread, universal habit; it is not. Only a relatively small minority of owners engage in it. Many owners have acted, and continue to act, in a way which acknowledges that when the law 430 was changed to make it a criminal offence to drive on commons the purpose was to stop vehicles driving over the commons but not to stop people getting to their homes. That clarification of the law—if that is what it is—was not regarded as a means suddenly to charge great sums of money. But that is what happened in a number of cases. It is those cases which have caused outrage in certain quarters.
In another place, Sir George Young initiated an adjournment debate on the subject. The case drawn to his attention related to Newtown Common. The owners of the common had never been identified until a recent court case which established, I think to the surprise of the family who had sold the lords of the manor rights, that the ownership of the common went with the lord of the manor. That was complete news until the court determined that to be the case. With the new owner came a complete change of policy. Whereas the previous owners had acquiesced over access to the houses, the new owner started sending letters to each of the houses whose owner had to go over part of the commons to gain access to his house. The letter stated that,
under the terms of an amnesty the owners will accept 6 per cent of the open market value of your property provided an agreement is reached before the 15th November 1999".
§ That figure and date have since been modified, but clearly that was no little shock.
§ Surrey County Council is seeking considerable sums for access over commons in its ownership as are a number of parish councils even though they acquiesced, apparently quite happily, in allowing vehicular access for so many years.
§ What seems particularly inequitable is that had these owners behaved in the responsible way that other owners behaved and put access agreements on a proper footing many years ago it would have been much easier to find long-standing residents who could testify to the use of these tracks going back to the early years of the century. Now it is impossible. After 70 years it is no longer possible to establish one's prescriptive rights. It is no good saying, "My house is 200 years old. Here is a track." One cannot prove that the track has not changed.
§ Failure to send a bill for 70 years is an abuse of the owner's rights. Bills are now being sent for 6 per cent or even 10 per cent to continue to have access to a house. It will be ultimately for a land tribunal to, determine whether that is the right figure. But 5 per cent or 6 per cent may well stick in some cases. The owner of the commons stands to gain a windfall from a failure to present a bill 70 years ago.
§ I am sorry for that lengthy introduction but noble Lords will agree that it is unusual to point out a failure of the law over some 70 years. My amendment seeks to alleviate the financial burden that these householders face so unexpectedly. It makes a differentiation in charge between those who have enjoyed unfettered access for a long time and those who have had access for a short time. It is an important principle. The amendment limits the charge which can be imposed on householders to a percentage of current value. The 431 amendment suggests a zero charge for houses built before 1930; 2.5 per cent for houses built between 1930 and 1979; and 5 per cent—some might consider that the going rate—or even higher for houses built since 1979.
§ The amendment provides also that payment is to be made either at the change of ownership of the house or at the creation of a lease exceeding 21 years or sooner if the householder chooses. If none of those events occurs the payment must be made after 30 years.
§ The amendment has the effect of removing uncertainty from currently threatened householders who will know the upper limits of their liability. I have no doubt that many will be horrified that they face such a bill but at least they have the certainty of knowing the upper limits of this access charge. I beg to move.
§ 9 p.m.
§ Lord McIntosh of Haringey
Perhaps it may help the Committee if I respond immediately because we have some positive things to say about the amendment—and that may even curtail debate, God forbid!
The Government have made clear that we have considerable sympathy with the objectives of the amendment. We agree that landowners should not be able to make excessive charges for granting rights of vehicular access across their land when such access has been enjoyed for many years without problems arising.
As the noble Earl made clear in his excellent speech, the situation has arisen because the Law of Property Act 1925 and road traffic Acts since 1930 have made it a criminal offence to drive over common land without the owner's permission. Because it is an offence, prescriptive rights cannot be acquired through long use. This has often been overlooked when properties on or adjacent to commons have been built or sold, with a result that many people have been driving over commons to get to their homes or other property in the mistaken belief that they had a legal right to do so. Their surprise at discovering that this is not the case no doubt turns to bewilderment, or worse, when they are suddenly presented with a large bill which can be as much as 10 per cent of the value of their property should they wish to acquire such a right.
We understand and share the objectives of the noble Earl. However, there are a number of problems with the amendment which means that we cannot accept it. First, it is doubtful that use of the way can be as of right because driving across common land is a criminal offence. Secondly, the amendment does not specify a period of time for which the access had to be used. As drafted, one day's use prior to November 1979 appears to qualify. It may simply be that the word "since" has been omitted from the amendment. I do not make any serious point on that.
Thirdly, the amendment would not give the property owner any option. Provided the conditions were met, the statutory easement would arise and he would have to pay for it, although he could defer payment. Fourthly, it is not reasonable to expect the 432 landowner to wait for up to 30 years for compensation for the grant of rights over his land. Finally, the dispute resolution procedures in subsection (6) are inadequate.
We recently announced our intention to table amendments on Report. We have made details of our proposals available to your Lordships, but I shall set them out in summary. We intend to set criteria that have to be met for a statutory right of vehicular access over common and similar land to arise. The underlying principle is that the property owner or his predecessors must have been using the access in such a way and for such a time that had the land not been common land or other land on which driving is prohibited, a prescriptive right of access through long use would have been acquired.
Secondly, we propose to set a limit on the amount of compensation that the property owner has to pay to the landowner. We have been at pains to point out that it would not be right for the property owner to pay nothing to secure an undoubtedly valuable right. We have proposed a maximum compensation of 4 per cent of the value of the property with access or one third of the difference between the values of the property with and without access if that is lower. I believe that that is in line with what the National Trust and Surrey County Council charge. Although we have concluded that 4 per cent is an appropriate maximum, we shall listen to any alternative views.
In the circumstances, I hope that the noble Earl will accept that, subject to any consultation that takes place between now and Report stage, it is better to proceed on that basis than to press the amendment.
§ Baroness Byford
I thank the Minister for making his contribution so early. I am sure that my noble friend Lord Selborne will be grateful for it. We are grateful to the Government for coming forward with their own proposals and for giving us a chance to think about them. We are due to reflect our thoughts back to them on 16th October. I do not wish to delay any more, except to say that I fully understand why my noble friend raised the issue and am grateful to him for having done so. Even a maximum of 4 per cent will be an unwelcome surprise for some. Quite a few elderly retired people live in such houses and many could have difficulties with such a sum, particularly if they bought their property cheaply or if it has been passed down the family and is now valuable. I do not wish to prolong the debate. We are happy to reflect on the issue and come back.
§ Earl Peel
I have a question for the Minister that goes to the root of the problem. I have a great deal of sympathy with the noble Earl's arguments. There is clearly a problem. As I understand it, the Road Traffic Act 1930 specifically refers to common land to ensure that there is no doubt that it is not included. Is it sensible, justifiable or, indeed, legal to differentiate common land from non-common land? Common land is privately owned, albeit subject to certain rights such as grazing rights and estovers. An owner of common land should be afforded the same rights as an owner of 433 non-common land when entering into negotiations with anybody who wishes to acquire an easement over the land. I am concerned that we are suddenly creating a differential treatment in law between common and non-common land. It is very important that the Minister answers that question.
§ Lord McIntosh of Haringey
All that I can say is, "good try". Of course there is a difference. We recognise the difference in law between common and non-common land. We are considering whether the amendment that we table on Report should extend to other land on which driving is prohibited. Our proposals will certainly not assume that there is no difference in law between the two, because there is.
§ Baroness Carnegy of Lour
I have not had the benefit of receiving a copy of what the Government have sent to some noble Lords. That is inevitable, because the Government were not to know that I was interested, but I have been taking an interest in the issue for some time. Will the Government's proposals be retrospective? We would not be pleased if they were.
My other point is that I have received letters from Mr Michael Farrow, the freeholder of Newton Common in Hampshire, of which noble Lords will have heard, and also from the chief legal adviser of the Country Landowners' Association. I have received those two communications as well as one from the noble Lord. They both raise in considerable detail the question of the human rights, under the human rights convention, of the owners of common land, whether they be local authorities or private individuals. Are the Government paying attention to that in their proposals?
I am delighted that they are trying to solve that problem. That is excellent because people are being placed in an awful position. What has happened to householders is monstrous. However, the problem, as set out by the two lawyers to whom I have referred, is that it is not only house owners whose human rights are threatened but also the owners of common land. Obviously, if the House is to legislate intra vires, it must consider both.
§ 9.15 p.m.
§ Lord McIntosh of Haringey
I have seen the document, to which the noble Baroness, Lady Carnegy, refers, from the lawyer to one of the owners of common land who is concerned with this matter. Perhaps I may assure her that we are fully aware of the issues relating to the European Convention on Human Rights and we shall have due regard to that. As to whether we are legislating retrospectively, we are talking about charges that will be levied in the future. The cut-off date for those charges is a matter for the detail of the amendment which we put forward.
Perhaps I may return to the point raised by the noble Earl, Lord Peel. He asked me whether it was right to differentiate common land from other land. As I believe I said, the difference is between land on which 434 it is a criminal offence to drive and that on which it is not. There is some land—but only some—other than common land on which it is a criminal offence to drive.
Owners of common land are of course free to negotiate under the Government's proposals where they have not enjoyed access for over 20 years. That is at least in common with other land.
§ Baroness Sharp of Guildford
My name is attached to this amendment and I should like the opportunity to say a few words about it. I very much agree with what the noble Earl, Lord Selborne, said. He mentioned the problems with Surrey County Council. That council has changed its stance on this particular issue. Having originally granted easement at a peppercorn rent, it was then reminded by someone that it should be looking to secure best value for its assets. Since then, the council has sought to gain rather more for the right of easement.
There is also a very real problem that different jurisdictions within Surrey County Council have different policies. Guildford Borough Council and Waverley Borough Council have granted easements at a zero cost. Abinger Parish Council has a problem in that it owns the common land through a charitable trust, and it has been advised by the Charity Commission that it should do the same as Surrey County Council; namely, that, if possible, it should secure best value for its assets.
Therefore, a real problem exists in relation to differentiation between different authorities and the inequities that arise as a result. There is also the problem that has arisen with Newtown, where private landlords have discovered that they have rights for which they can secure some profit.
From these Benches, I thank the Government for the proposals that they have put forward. I believe that they are extremely constructive. Some problems arise as they stand in relation to the issue of those who have had, so to speak, long-standing rights of way. That can still create inequities. I believe that we should look at the proposals in more detail and return to the issue. However, for the moment, I thank the Minister for his proposals.
§ The Earl of Selborne
I am grateful to the Minister for his words of encouragement. I am sorry that getting in early did not totally curtail the debate. However, I am delighted about that because it demonstrated that there is a feeling on all sides of the Chamber that this matter needs to be addressed.
Although I have thanked the Minister, he will perhaps not be surprised to hear that I am not entirely persuaded that what he is recommending meets the sense of injustice which I believe the Committee feels. It comes back to the point to which my noble friend Lord Peel, I believe inadvertently, referred. He wanted to ensure equal treatment for owners of common and other land. That is exactly what I should dearly like to achieve. However, owners of common land are in the pound seats. They can never have prescriptive rights on their land unless those rights can be proved to go 435 back to 1910; that is, 20 years before the introduction of the road traffic Acts. In other words, any landowner who, only by going back to 1910, can say that prescriptive rights can be established is in an extraordinarily privileged situation.
I am sure that it was not intended but the introduction of the road traffic Acts in 1930 meant that thereafter, you could not get prescriptive rights and if an owner did not bother to give an entitlement, as he should have done, or the householder did not identify who the owner was and could not do so, then for the rest of eternity, as the law stands at present, he can never have a right to access his own house. That is because at any moment, an owner might suddenly appear out of the woodwork, as has happened at Newton Common, and send in a bill.
I am certainly not happy about the charge of 4 per cent which people must pay. I know that the Minister suggested that that should be the upper limit but I believe that will be used as a guideline by the Lands Tribunal and others. Quite frankly, I believe that anyone who does not send in a bill for 70 years is remarkably lucky to obtain even a fraction of that sum. That is why I suggested that zero would be an appropriate figure for anyone whose house pre-dated 1930. Therefore, I shall certainly bring forward a different proposal on Report.
However, for the moment, I thank the Minister for his positive response and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 62 [Making of traffic regulation orders for purposes of conserving natural beauty, etc]:
Lord Whitty moved Amendment No. 443:
Page 40, line 31, after third ("road,") insert ("a GLA road,").
§ The noble Lord said: My Lords, this is a technical amendment relating to Clause 62 which, among other things, introduces new powers for traffic authorities to make orders controlling vehicular traffic over minor byways for landscape and nature conservation purposes. Because there is no statutory definition of such byways, the Bill lists the types of highway to which the new powers will not apply; for example trunk roads and classified roads. However, the list is incomplete in that it does not presently include the major roads in London for which the Greater London Authority is now responsible. Amendment No. 443 would correct this omission by adding GLA roads to the list. I beg to move.
§ On Question, amendment agreed to.
§ Clause 62, as amended, agreed to.
§ [Amendment No. 443A not moved.]
§ Clause 63 [Prohibition on driving mechanically propelled vehicles elsewhere than on roads]:
§ [Amendment No. 44 had been withdrawn from the Marshalled List.]
§ Clause 63 agreed to.436
§ Schedule 7 [Driving of mechanically propelled vehicles elsewhere than on roads]:
Baroness Byford moved Amendment No. 444A:
Page 89, line 21, at end insert—
(" .—(1) Section 33 of that Act is amended as follows.
(2) In subsection (1), for "or bridleway" there is substituted ", bridleway or restricted byway".
(3) In subsection (4), for "or bridleway" there is substituted ", bridleway or restricted byway".
(4) After subsection (5) there is inserted—
(6) In this section "restricted byway" has the same meaning as in Part II of the Countryside and Rights of Way Act 2000.".").
§ The noble Baroness said: On Monday, we were discussing the whole question of bridleways and restricted byways. We acknowledged that there are those who gain but there are also those who lose. I look across to the noble Lord, Lord Williams of Elvel, because his amendment follows and this amendment obviously has some bearing on it.
§ Some of the losers are likely to be those who enjoy watching or participating in motor vehicle trials, for example, in the countryside. This amendment would mean that those activities, if approved by the local authority, would be permissible. My understanding is that as the Bill is currently drafted, that would not be so. I seek clarification on this matter. It should be possible to seek authority to organise and arrange such motor trials. Unless the Bill is amended, it will no longer be possible to do so. I beg to move.
§ Lord Whitty
I think I understand the argument that the provisions of Section 33 of the Road Traffic Act should apply to restricted byways in the same way as they apply to footpaths and bridleways. But there are other provisions in the 1988 Act which it could be argued may also apply.
For that reason, we have the power in Clause 48 for the Secretary of State to make regulations applying or not applying provisions in legislation to restricted byways. We have made one or two exceptions by, for example, expressly applying Section 34 of the 1988 Act. However, generally we believe it to be more sensible to take decisions on which legislation should apply and which should not to the detailed regulations. The regulations will be subject to the affirmative procedure so that Parliament will have an opportunity to debate them.
Whatever the individual merits of the amendment, if we begin now to pick out further provisions to be applied, there is a risk of bouncing us into taking decisions on all the other provisions under these powers. It would be better, therefore, if we left discussion as to which provisions should apply until we come to the regulations rather than trying to resolve all those issues on the face of the Bill. I hope that the noble Baroness will not pursue her amendment.
§ Baroness Byford
I am grateful to the Minister. I think he will understand why there has been concern among those who wish to participate in authorised and 437 approved trials as opposed to the ones which we are likely to debate shortly. I have listened to what the Minister said and am happy to leave the matter until a later stage when we consider regulations. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Williams of Elvel moved Amendment No. 445:
Page 89, line 30, at end insert—
("(1A) For the purposes of this section a person shall only be deemed to have lawful authority if in carrying out the activity described in subsection (1) he has due regard to nature conservation.
(1B) For the purposes of subsection (1A) the Countryside Agency and the Countryside Council for Wales shall issue guidance about the nature conservation matters to which regard should be had.").
§ The noble Lord said: In moving Amendment No. 445, for the convenience of the Committee I shall speak also to Amendment No. 446. We come to the question of lawful authority and how that is to be defined. I take the point made by the noble Earl, Lord Peel, in a previous debate, that it is difficult to distinguish between owners of common land and owners of enclosed land. I believe that lawful authority, in this circumstance, is shared between owners of common land and owners of enclosed land.
As I stated recently, I can only speak to the situation in Wales. As regards common land, the National Assembly for Wales, in its informal interpretation of "lawful authority" states:
The securing of all necessary consents, including the agreement of all parties with legal rights over the land. In the case of Common Land, this would include the agreements of the owner, any commoners, tenants, licensees or owners of any easements over the land".
§ The National Assembly for Wales does not define "legal authority" or "lawful authority" in the case of enclosed land. However, that probably follows from its informal interpretation.
§ I now learn, by hearsay, that in future, lawful authority will be defined by the National Assembly for Wales as "the consent of the owner" rather than, "the consent of the owner in the case of common land, plus graziers and others who have any rights".
§ It is certainly true that events—by "events" I mean motorcycle or four-by-four events—which go across or along rights of way under the Section 33 of the Road Traffic Act 1988 require the approval of the local authority in question. Events where vehicles will drive on common land or moorland beyond 15 yards of a public highway require the approval of a local authority. What is in question is whether the lawful authority is to be defined as simply the approval of the owner of the land or whether the local authority has any status in this discussion.
§ As a background to this I would say that in mid-Wales there is a serious problem in relation to events taking place in the uplands on what appear to be an unauthorised basis by motorcycles and four-by-fours—I am sure the Committee recognise that description. On Gilwern Hill, not far from my home, four-by-fours were given authorisation by the owner 438 of the common to stage such an event. They did not cross a right of way and were perfectly entitled to do so. But they churned up the whole of Gilwern Hill and it will take around 30 years for that hill to return to its original state, if it ever does.
§ My amendment seeks to persuade the Government to define "lawful authority" in terms of nature conservation. I believe the purpose of the Bill is to promote nature conservation. I believe also that the common land in Wales, and I suspect in England as well, is a major and profitable habitat for wildlife. Nothing destroys such habitat more quickly than motorcycles and four-by-fours running across it. We have a common above my home in Wales which became the site for motorcycle trials. We no longer find curlews, lapwings and skylarks on that land. All ground nesting birds on that common have been destroyed by the vehicle movement across it.
§ I simply ask my noble friend to accept that anybody who has the right to grant permission for such events to take place should have regard to nature conservation. That must be part of the Government's intention in the Bill. In that regard, in my Amendment No. 445, new subsection 1(B) provides that the Countryside Agency and the Countryside Council for Wales will give advice on what nature conservation really means.
§ I understand that those events cannot be regulated by the police. But it is a problem when the police are not notified that they are to take place. Therefore Amendment No. 446 seeks to require the police to be informed if such an event is to take place. If that does not happen; if there is no serious restraint on "lawful authority"; and if the National Assembly of Wales simply says that the owners of the common or, as the noble Earl, Lord Peel, said, of enclosed land can, themselves, say that it will happen, then the Government are losing a trick. Nature conservation in the Welsh uplands, and I am sure on many commons in England, should be the imperative. I beg to move.
§ Earl Peel
I begin by saying that I have a great deal of sympathy for what the noble Lord, Lord Williams, says. But perhaps I can correct him on one point. When he described his problems in Wales he implied that land was clearly defined between common land as being open land and in-by land being enclosed land. But of course we must not lose sight of the fact that a lot of open land is also non-common land.
I sympathise with what the noble Lord says but we must remember that in some parts of the world—it applies in my part of the world—there are organised trials whose routes are carefully predetermined. The clubs involved in the trials are extremely sympathetic to all the requests made by the landowner. The local authorities usually know about them and no damage whatever is done. They do not occur often—perhaps once or twice a year—but they give an enormous amount of pleasure to the members of the clubs.
§ Lord Williams of Elvel
Do the events which take place in the noble Earl's part of the world and which are approved by authorities have regard to nature conservation and wildlife habitats?
§ Lord Williams of Elvel
That is an SSSI which is protected. National parks are protected but what used to be called Radnorshire is not an SSSI or a national park. It is open country.
§ Earl Peel
I do not disagree with the noble Lord in any way. I have complete sympathy for his argument. I am merely putting another side of the argument because it is important that the Committee realises that the trials can take place in a sympathetic fashion provided that there is co-operation between the club, the owner, English Nature, the local authorities and the police. That is the only point I am making. The noble Lord makes a valid point. Something must be done to stop trials taking place indiscriminately and, like the noble Lord, I look forward to hearing the Minister's response.
§ Lord Hardy of Wath
I am grateful for my noble friend's initiative. I accept that reputable organisations conduct motorcycling trials which do not cause much bother but my experience of off-road vehicles is that they are devastating. I have received many letters and I am aware of an organisation, Gleam, which is deeply concerned about the situation. One of the right reverend Prelates has spoken to me about appalling damage caused on the Ridgeway as a result of off-road; they are destroying that enormously important environmental facility.
I took a great interest in the problem in my area of South Yorkshire. It is not unique because many communities have suffered enormous nuisance from these vehicles. Last year, I watched such vehicles riding over the nests of plover and skylark and for various reasons we have noted a diminution over the past 12 months. Young people ride on motorbikes, which I am told are sometimes stolen and certainly bought cheaply. The bikes are not necessarily in good condition, not licensed, not insured and the rider is unhelmeted. The damage caused to the young people is likely to be serious. The damage to wildlife and the natural environment, ripping up the ground and destroying it, can be appalling.
Earlier this year in a small community in South Yorkshire people were driven to a state of despair by off-road vehicles in attractive countryside. They went to their parish hall where there was standing room only while hundreds of people complained. That is not unique. A well known broadcaster, whom I have never met, wrote to me to describe his experience. After a period of hard work in the media he decided to visit the 440 Peak District for some peace and quiet. He had been there one hour and was passed by four racing off-road vehicles and a succession of motorbikes. He then encountered a couple acting more naturally and found that although it was in broad daylight in a public place it was less offensive than the noise and discharge of the motor vehicles.
There is a problem as more and more of these vehicles are purchased. The people concerned see films on television which show cars careering around the countryside and believe that they can do it. When I remonstrated with a young motorcyclist, who believed that he could ride his motorcycle at the back of my house, he thought that he should be able to do so because he had nowhere else to go. I told him to pass his test and be a nuisance on the road. I also told him to get a helmet and insurance and have his vehicle inspected for roadworthiness before he rode it.
There is an assumption that if land is open anyone can do anything on it. The damage that has been done to British wildlife in the past few years cries out for attention. The Government must show by the time this legislation is enacted that they are responding to this problem; if not, they will not serve the necessary cause to which they have put their hand.
§ Lord Roberts of Conwy
I support the amendments of the noble Lord, Lord Williams of Elvel, not simply because he refers so endearingly to Wales but because what he says accords with one of my observations during Second Reading. I said that I had been astonished by the extent to which in the Bill the emphasis had been shifted from conservation, as it used to be, to access. We should all like to reconcile the two. However, I incline to the view of the noble Lord, Lord Williams, that in general access is at the expense of conservation, particularly in terms of bird life and so on.
I am mindful of the situation in Snowdonia. I shall not expand on the situation in that area. However, it is the fact that many birds and other species which were conserved in Snowdonia are now, and in future, very much threatened by the access provisions of the Bill. I endorse the effort in these amendments to re-emphasise conservation and ensure that that is a major consideration.
I understand the point made by my noble friend Lord Peel. These events can be organised in a way that is pleasing to those who participate in them and does no harm. It is important that such events should be properly organised and authorised and that the police are informed, as the second amendment of the noble Lord, Lord Williams, suggests. If there is to be access and such events are allowed—I do not see how they can be prevented—they should be properly authorised. I reassert, however, that conservation of wild species and so on must be the primary consideration.
§ Baroness Miller of Chilthorne Domer
I welcome the fact that the noble Lord highlights what is undoubtedly a problem in special areas of landscape. Very often they are hilly and bumpy areas in which it 441 is fun to hold trials. One of the difficulties highlighted by the noble Lord—I look forward to hearing the response of the Minister—is how to identify who is responsible. As I understand it, if the owner has given permission the local authority must allow 28 days of such use per year unless there is a particular reason for granting a stop notice.
§ Lord Williams of Elvel
Perhaps I may add a gloss to the remarks of the noble Baroness. Certainly, in Wales—it is perhaps true also in England—if there is no crossing of rights of way the local authority has no locus to give approval or otherwise to these events.
§ 9.45 p.m.
§ Baroness Miller of Chilthorne Domer
What I meant was that planning permission would not be needed if events occurred on fewer than 28 days a year. The noble Lord is right, there would be no authority. I agree with the spirit behind the amendment, but I would highlight that it is therefore incumbent on local authorities to provide somewhere where events can take place. It is usually young people who take part in the events and they enjoy this kind of activity. If provision can be made for this activity it will be worthwhile. I appreciate it is difficult. I spent some time on this issue with a trial-biking group.
§ Lord Williams of Elvel
I am sorry to interrupt the noble Baroness again. All land, as the noble Earl, Lord Peel, said, is owned. There is a landowner. Unless the local authority happens to be the landowner, it is not for the local authority to provide facilities for such events. All land being owned, it is up to the owner of the land t o decide whether or not he or she will provide such facilities. As the law presently stands, that is not a function of the local authority.
§ Baroness Miller of Chilthorne Domer
The noble Lord is right, there is not a duty on the local authority to provide somewhere for the events. But given the pressure for local authorities to provide facilities for young people—trial-biking is a sought after facility—they need to address that issue. Certainly where I live, it would not be good enough simply to ban it without providing any alternative whatever in the interests of nature conservation, which is worthwhile where there are sites which need protection.
§ Lord Glentoran
Members of the Committee on these Benches have a lot of sympathy with the amendment of the noble Lord, Lord Williams of Elvel.
I should like to reflect a little on comments made by my noble friend Lord Peel and by the noble Baroness, Lady Miller. I suggest that this boils down to the management of access and to the management of land.
All land is owned by someone, as we recently discovered when debating common land. There is room for some kind of an amendment here because when quads and motorbikes are not managed they are a serious nuisance and are liable to do serious damage to conservation areas and to wildlife. The noble Lord, Lord Williams of Elvel, in particular referred to these 442 events which can take place on land which is neither right of way land nor access land. That makes the position even more difficult.
However, the noble Viscount, Lord Brookeborough—I shall take his name in vain, despite the fact that he is not in his place—has a wonderful wild estate in West Tyrone. As farming is worth a minus figure, he has moved into other ways of making money out of his property. He combines snipe and wildfowl shooting, walking and all that goes with that, with running corporate events for major companies. People come from England and all over to take part in them. He, by proper and skilful management and much work, runs these events over what in this country would be access land. He is able to protect his wildlife and ensure that year on year he has the kind of wildlife he wants for people to enjoy when walking and the kind he wants for sport, for people to shoot. Also he organises these events.
I agree strongly with the point made by the noble Baroness, Lady Miller. I was on the recreation committee for the Sports Council in Northern Ireland. In Northern Ireland we have enormous enthusiasm for motor sports. Noble Lords will be aware of the number of Formula One drivers and champions of one kind or another—whether motor bike riders or motor car drivers—that we have in Northern Ireland. That does not just happen. The local authorities have taken these sports seriously and have made areas available wherever possible—in disused quarries, at disused airfields and in all kinds of other places. They have used a good deal of imagination and have spent money. It is probably central government money, but they have found it. They have made available these areas, which are openly available. My plumber, who is a good friend of mine, is a leading go-kart driver. Some years ago he asked me to drive his go-kart. The track is on part of a disused airfield. It is properly managed and is open to all kinds of people. It is safe to drive go-karts there or many other things.
While I believe that the noble Lord, Lord Williams, has a real point—I have a great deal of sympathy with it—I hope that the Minister will have gleaned from around the Committee a fair amount of advice on the direction in which the Government might go on this very serious issue.
§ Lord Whitty
The noble Lord, Lord Glentoran, was being Delphic in his final point. This is a complex matter and it is not easy to see the balance of the way through. I recognise that there are some serious events which could be seen to threaten wildlife and certainly quality of life in the countryside as a result of landowners giving permission. We are not talking about people acting illegally; we are talking about where the landowner has given permission for events in the countryside which have detrimental effects on the environment and on the quality of life. On the other hand, the noble Lord, Lord Glentoran, and the noble Baroness, Lady Miller, are right that there is a demand—and not just in Northern Ireland but right across the country—for this kind of activity. In some cases, local authorities have met it.
443 I take issue with the noble Lord, Lord Roberts. This is not about access. These are not the access provisions as described in Part I of the Bill. These are situations where the landowner has voluntarily given access to a group—unaffected by access provisions in the Bill or elsewhere. The problem is that that has perhaps endangered nature conservancy or has caused other damage.
My noble friend Lord Williams is trying to resolve the matter by extending the definition of "lawful authority". The National Assembly for Wales has indicated—by and large, we would agree with its view of current law, but with a qualification, to which I shall come in a few moments—that lawful authority by the landowner allows such events to take place, subject to other provisions. Others do not have a role in that. The position with common land is slightly more complicated because the landowner does not necessarily have to have any concurrence from commoners before agreeing to recreational use of this kind. But there are circumstances in which he may need to do so. The owner can use the land as he wishes as long as it does not unnecessarily interfere with the rights of the commoners, which may vary from common land to common land. There is a residual right for commoners there. But, in general, my noble friend is right. The landowner is the sole repository, or virtually the sole repository, of the lawful authority.
My noble friend's amendment seeks to introduce a requirement for the statutory agencies—the Countryside Agency and the Countryside Council for Wales—to provide guidance on nature conservancy and conservation issues and a requirement on those using the land to notify the local authority and the local police of their activities. It is not clear to me whether that amendment would also require the local authority and/or the police to give permission in those circumstances, but that is there in the background.
There is a difficulty here in that the proposal would then introduce a new set of provisions which would impose additional burdens on three different bodies. It would require the drivers themselves to give notification to the countryside bodies—and here I should point out that it would not involve the Countryside Agency because English Nature is the body with statutory responsibility for nature conservation—and to the local authorities and the police. The process would become extremely complex to cover a single event—in particular in the context of trying to decide what would constitute "lawful authority". It is not entirely clear to me that it would bring any significant benefits.
We also have to recognise that in relation to nature conservation, a great deal of the land about which my noble friend is concerned is already covered by regulations, at least to some extent. In cases where the area is protected by falling within an SSSI, notification will be required to allow English Nature to reach some kind of agreement with the landowner about the nature of the activities. I appreciate that my noble friend pointed out that much of the territory of mid-Wales is not of SSSI status and that could also apply 444 elsewhere. However, I suggest that the majority of land on which a serious nature conservation issue would arise will most likely be SSSI land. Outside of those areas it is also open to local authorities to use by-laws to control access to land and to control events that can be held on it.
Furthermore, they may withdraw permission which has previously been granted for motorsports by using their powers to impose an Article 4 direction on the land concerned. Even if a site has no statutory nature conservation designation, and even if it is not covered by by-laws or Article 4 directions, the drivers or those organising the event will still have to comply with the relevant species protection legislation. This Bill of course strengthens such protection for rare species. Finally, on linear routes, traffic regulation orders may well also apply. My noble friend will see that there is already in place a great deal of legislation in this area.
§ Lord Williams of Elvel
On the question of species legislation, is my noble friend saying that anyone who organises a trial event on Gilwern Hill is obliged to abide by the species legislation? What does that mean?
§ Lord Whitty
As I understand it, it means that if wanton damage is caused to a species, the organisers will be liable under the offences created under the various different pieces of conservation legislation which will be enhanced by this Bill. I believe that what lies behind my noble friend's question is to query whether that will be known in advance. I believe that that is a valid question but one to which I regret that I do not have a direct answer. Nevertheless, I can tell my noble friend that this is not a totally unregulated activity. Even in those areas where no by-laws apply, there is no SSSI status and the local authority has not already taken action, some responsibilities continue to rest with the organisers and drivers involved in the event.
Clearly this is a difficult area and one on which concerns have been expressed. I suggest that there is an entirely separate issue whereby off-road driving takes place without lawful authority which is not addressed by these amendments. However, I think that my noble friend's requirement to redefine "lawful authority" effectively to require notification and de facto permission from the local authority and/or the police does not fully deal with the situation about which he is concerned.
Given the expressions of concern, I shall look at this again, but I do not think that my noble friend's amendment provides a wholly sensible solution. Clearly the landowner does have the right, subject to all the restrictions to which I have referred, to decide to whom he will give permission to use his land. Making that right in general subject to a form of local authority override would be extremely difficult. In addition, we need to take into account the points made by the noble Lord, Lord Glentoran, and the noble Baroness, Lady Miller; namely, that if a local authority was put in that position, it would probably have to find an alternative site, no doubt in Powys or mid-Wales. The problem would simply be transferred elsewhere.
445 The amendment does not provide an adequate solution. I do not think that my noble friend or those who have spoken in support of his amendment have the right answer. Certainly the Government do not have a complete answer at the moment.
§ 10 p.m.
§ Lord Hardy of Wath
Has my noble friend also considered that quite often vehicles are driven off the road in order to pursue criminal activity? The question of the theft of limestone pavement and other rocks was debated last week. People do not carry these in bags; they get a vehicle as near to the rocks as possible. Recent cases of the highly mobile criminal have attracted a great deal of attention—not merely thieves but people who engage in coursing, lamping, dog-fighting and so on in highly movable fixture venues.
Many of these activities take place off the road. While they are in breach of the law and do not have the owner's permission, there is no adequate regulation to discourage those activities. The police are sufficiently thin on the ground in rural areas for these people to have been getting away with it for a very long time.
§ Baroness O'Cathain
In view of the amendment of the noble Lord, Lord Williams, the Minister must realise that there is a serious problem in this regard. Will the Government come back with a solution at Report stage?
§ Lord Whitty
As regards the point made by my noble friend Lord Hardy, that is a separate issue. There are undoubtedly criminal activities—and probably a serious increase in such activities—involving off-road driving, but that is different from the situation where a landowner has given permission for an activity to take place.
This is a complex issue. While I should like to say yes to the noble Baroness, I cannot promise that we will come back with an adequate solution. The debate over the past 35 minutes has indicated that there is not an easy solution. No doubt we shall return to the issue on Report, but I cannot promise that the Government will have come up with a solution by then. Nevertheless, I hope that my noble friend will not pursue his amendment.
§ Lord Williams of Elvel
The definition of "lawful authority" is not right; it is not consistent with what the Government are trying to do in the Bill in terms of nature conservation. My noble friend criticised my amendment—he said it was not the right solution—but I cannot think of any solution other than nature conservation. I thought we were in the business of nature conservation in this Bill.
446 I hope that my noble friend will seriously consider my amendments and come forward, as the noble Baroness, Lady O'Cathain, suggested, with a government solution to this admittedly complex problem.
§ Earl Peel
I do not know whether it will help the Minister but on the question of nature conservation, I think I am right in saying that if the wildlife, the birds on the land in question, are Schedule 1 birds —I am sure that the noble Baroness, Lady Young of Old Scone, will be able to give a profound answer on this—English Nature can become involved. Am I not right?
§ Lord Williams of Elvel
It may be that English Nature can become involved, but the Countryside Council of Wales is a slightly different body.
It is up to the Government and my noble friend to bring forward an amendment on Report, as the noble Baroness, Lady O'Cathain, suggested. Nature conservation is the thrust of this Bill and the "lawful authority" in this case should be subject to nature conservation.
In the light of my remarks—I hope that my noble friend is not offended by what I have said and is taking it in the best of humour—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 446 not moved.]
Lord Glentoran moved Amendment No. 446A:
Page 89, line 34, at end insert ("and have no further highway rights").
§ The noble Lord said: In moving Amendment No. 446A, I shall speak also to Amendments Nos. 448 and 448A, in that order.
§ Amendment No. 448 refers to Schedule 7 and seeks to set a stiffer test for any evidence submitted to justify vehicular use of a footpath or bridleway. There is a real possibility that motorcyclists and four-by-four drivers will continue to ride with impunity on paths shown on definitive maps as bridleways or footpaths. Despite the attempt made to tackle this problem in paragraph 5 of Schedule 7—in subsection (2) of new Section 34 dealing with the prohibition of driving mechanically propelled vehicles elsewhere than on roads—the problem is that the new section does not stipulate the standard of proof required to defeat a prosecution requiring only prima facie evidence.
§ The danger is that defendants will continue to escape conviction by producing the most flimsy evidence to question the status of the right of way. For example, many members of the Trail Riders' Fellowship rely on hand-marked maps passed from one member to the next, with nothing attached to the map to indicate the origin of the evidence supporting the annotations. Would that be prima facie evidence? As most members of the TRF simply drive unquestioningly on the lanes marked on the maps, without being involved in gathering the original evidence, it is quite possible that they would seek to rely on such maps. Such a situation will not provide 447 any deterrent to illegal vehicular use of rights of way. The amendment sets a standard of proof necessary to prevent a successful prosecution. The standard is that required for many defences in criminal prosecutions and provides clarity and certainty for all parties.
§ Amendment No. 448A offers a slightly stiffer provision. In prosecutions under Section 34 for driving vehicles on bridleways and footpaths the defendant may claim that vehicular rights actually exist. The showing of a way on a definitive map as a footpath or bridleway does not mean that greater highway rights do not exist. If the defendant can show that vehicular highway rights exist, he should be acquitted. Subsection (2) of the proposed new section does not make sufficiently clear that higher rights are taken not to exist unless demonstrated. It also requires only prima facie evidence that there are higher rights which may be capable of being disproved, rather than proof on the balance of probabilities that such vehicular rights exist.
§ The amendment imposes that balance, protecting defendants who were exercising vehicular rights, but prevents acquittal on the basis of vehicular rights which do not in fact exist. I beg to move.
§ Lord Williamson of Horton
I support the amendment. We had a partial discussion of this matter in relation to a previous amendment proposed by the noble Lord, Lord Williams of Elvel. The situation is a little different now because we have specific amendments which are directed at correcting the situation—and I am quite sure that it should be corrected. There is a slight risk that we are so busy improving the network of footpaths and bridleways—of which I am strongly in favour—that we forget that at least one of the important purposes is that citizens should have quiet and safe enjoyment of the network. That is what the amendment is about.
We have arrived at a curious situation. Driving a motor vehicle without lawful authority on a footpath or a bridleway is an offence under Section 34 of the Road Traffic Act, and footpaths and bridleways will be shown on the definitive map, but we know, because there is plenty of evidence, that some drivers of off-road vehicles or motorcycles simply ignore the situation. They have been taken to court but have not been found guilty because of the way in which the current legislation is drafted; namely, with its reference to nothing prejudicing the possible existence of other rights.
We are faced with a very difficult situation because it is perhaps impossible to secure a conviction under Section 34 of the Road Traffic Act. The consequence is quite simple. People who are trying to take advantage of this quiet and safe enjoyment of the footpaths or bridleways are subjected to the passage of off-road vehicles or motorcycles—illegally, in my view, but that is what is happening. If the rules and practice of this Chamber allowed me to play a recording of the noise of six motorcycles zooming down a bridleway with the distant sound of the whinny 448 from a horse running in a different direction, I am sure that the support for this amendment would quickly double.
We are dealing with a serious point. People do not wish to walk on footpaths or use bridleways only to find that their enjoyment is badly damaged by the noise and disruption of vehicles that should not be there. The best solution is the most radical one; namely, to make the definitive map conclusive in the context of criminal proceedings. In that way, anyone claiming that the definitive map was wrong would have to invoke the modification order application procedure under the 1981 Act. That is quite difficult to do, and I should like it to remain so. That would be the best solution. If we do not go that far, we should at least go as far as the amendments in this group.
In one way or another, we must avoid the situation where the law does not correspond to what the ordinary citizen expects to find when he walks or rides on footpaths or bridleways. That is obviously what is happening now. It is not what one would expect to find in those circumstances. If we do not do something now, the problem will become worse. There will be more disturbance of walkers and riders in the future by motorised vehicles. I hope that we shall be able to correct the situation, which, in my view, has wrongly arisen because of the way in which the preceding Acts were both drafted and interpreted.
§ Lord Hardy of Wath
I hope that my noble friend the Minister was listening to that speech. We are in danger of making a real error in this respect. For example, one of my dogs is a middle-aged Norwich terrier, who is only so big. If I were to drop its lead and the terrier were free during an inappropriate time of the year, I would be committing a larger offence—or likely to be seen as committing such an offence—than someone tearing about on a 1,000 c.c. motorbike, a 2.5 litre or even a 4 litre four-by-four making a much greater adverse impact on the wildlife of the locality than would be the case with my little Norwich terrier. Therefore, when the Bill completes its passage, I hope that the Minister will ensure that such an anomalous situation does not exist.
§ Baroness Miller of Chilthorne Domer
We on these Benches believe that these amendments would be helpful in clarifying the situation. I look forward to hearing the Minister's reply.
§ Lord Whitty
We recognise the seriousness of the issue that the amendments attempt to address, even without hearing a recording of several motorbikes in action in the countryside, as proposed by the noble Lord, Lord Williamson. There is substantial concern about unlawful driving on footpaths, bridleways, and so on. There is also concern that Section 34 of the Road Traffic Act has been difficult to enforce. Indeed, as we know, there have been many failed prosecutions.
Schedule 7 to the Bill will replace Section 34 and will, among other things, place a burden on the defence to show why, where the way in question is shown on a definitive map as a footpath, bridleway or restricted 449 byway, it should not be presumed to be such a way. Therefore, it is the defendant who will be required to produce prima facie evidence that vehicular rights exist.
The amendments seek to remove the reference to prima facie, although the evidence would be subject to cross-examination. The courts have much experience of applying evidential tests. Nevertheless we recognise that we may not have gone far enough in this respect. We are prepared to consider the principle behind the group of amendments. Earlier we undertook to consider the case for raising the test, at least to one of the balance of probabilities. However, the matter is not straightforward, but nothing is in this area. We also have to take into account the human rights dimension of potential defendants. Nothing is simple in this life. Nevertheless we recognise the substantive problem that has been raised. We undertake to try to bring forward a measure on Report which goes a significant way to meet the concerns expressed tonight.
§ 10.15 p.m.
§ Lord Glentoran
I thank the Minister for giving that undertaking. I go further and say that I am absolutely delighted that he will reconsider the matter. I wish him and the department luck in coming forward with new propositions in this difficult area. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 447 to 448A not moved.]
§ [Amendment No. 449 had been withdrawn from the Marshalled List.]
Lord Whitty moved Amendment No. 449A:
Page 90, line 12, leave out from ("byway"") to end of line 13 and insert ("means a way over which the public have restricted byway rights within the meaning of Part II of the Countryside and Rights of Way Act 2000, with or without a right to drive animals of any description along the way, but no other rights of way.").
§ On Question, amendment agreed to.
§ Schedule 7, as amended, agreed to.
§ Clause 64 [Erection of stiles, etc.: needs of persons with mobility problems]:
§ [Amendment No. 450 had been withdrawn from the Marshalled List.]
Lord Whitty moved Amendment No. 450A:
Page 41, line 14, at end insert—
("(2) After that section there is inserted—
§ Agreements relating to improvements for benefit of persons
with mobility problems.
§ 147ZA.—(1) With respect to any relevant structure, a competent authority may enter into an agreement with the owner, lessee or occupier of the land on which the structure is situated which provides—
- (a) for the carrying out by the owner, lessee or occupier of any qualifying works and the payment by the competent authority of the whole or any part of the costs incurred by him in carrying out those works, or
- (b) for the carrying out by the competent authority of ally qualifying works at their own expense or subject to the payment by the owner, lessee or occupier of the whole or any part of the costs incurred in carrying out those works.
§ (2) In this section—
- (a) "competent authority" has the same meaning as in section 147 above,
- (b) "relevant structure" means a stile, gate or other structure which—
- (i) is authorised by a condition or limitation subject to which the public right of way over the footpath or bridleway was created, or
- (ii) is authorised under section 147 above, but does not include a structure to which an agreement falling within section 146(5)(b) above relates, and
- (c) "qualifying works", in relation to a relevant structure, means works for replacing or improving the structure which will result in a structure that is safer or more convenient for persons with mobility problems
§ (3) An agreement under this section may include such conditions as the competent authority think fit.
§ (4) Those conditions may in particular include conditions expressed to have enduring effect—
- (a) for the maintenance of the structure as replaced or improved, and
- (b) for enabling the public right of way to be exercised without undue inconvenience to the public.
§ (5) Where an agreement under this section has been entered into in relation to any structure—
- (a) the public right of way is to be deemed to be subject to a condition that the structure as replaced or improved may be erected and maintained in accordance with the agreement so long as any conditions included by virtue of subsection (4) above are complied with.
- (b) in a case falling within subsection (2)(b)(i) above, as from the effective date the previous condition or limitation relating to the relevant structure shall cease to have effect, and
- (c) in a case falling within subsection (2)(b)(ii) above, as from the effective date the previous authorisation under section 147 above shall cease to have effect in relation to the relevant structure.
§ (6) In subsection (5) above "the effective date" means—
- (a) the first anniversary of the day on which the agreement was entered into, or
- (b) such earlier date as may be specified for the purposes of this subsection in the agreement.
§ (7) For the purposes of section 143 above, any stile, gate or other structure replaced or improved in pursuance of art agreement under this section is to be deemed to be erected under this section only if any conditions included by virtue of subsection (4) above are complied with.
§ (8) A competent authority may not enter into an agreement under this section except with the consent of every owner, lessee or occupier of the land on which the relevant structure is situated who is not a party to the agreement.
§ (9) The Secretary of State may issue guidance to competent authorities as to matters to be taken into account for the purposes of this section; and in exercising their powers under this section competent authorities shall have regard to any such guidance issued to them."451
(3) In section 146 of the 1980 Act (duty to maintain stiles etc. on footpaths and bridleways) in subsection (5), before the word "or" at the end of paragraph (a) there is inserted—
(aa) if any conditions for the maintenance of the structure imposed by virtue of subsection (4) of section 147ZA below are for the time being in force under that section,".").
§ The noble Lord said: Amendment No. 450A relates to Clause 64 and an issue raised by the noble Lord, Lord Addington, at an earlier stage concerning the requirement on local authorities to have regard to the needs of people with mobility problems when authorising the erection of stiles, gates and other stockproof barriers on footpaths and bridleways under Section 147 of the Highways Act 1980.
§ Section 147 is concerned solely with approvals for the erection of new structures. Amendments tabled in another place drew attention to the fact that there are many existing stiles which might usefully be altered, or replaced with different structures to improve access for disabled people. There is doubt at present whether local authorities have the power to contribute to the cost of making changes to stiles to help people with disabilities and indeed on the extent to which a landowner can replace such structures.
§ Amendment No. 450A would remove that doubt. It would enable authorities who presently have the power to authorise new stockproof structures to enter into agreements with owners, lessees or occupiers to alter or replace existing structures to make them safer or more convenient for people with mobility problems. The work could be undertaken by the land manager with all or part of the costs paid by the authority, or the authority could do the work or contract the work with the land manager meeting some or all of the costs. That would be a matter for agreement between the parties.
§ Agreements would replace the previous authorisation under which the stile or gate was erected. I should point out that the amendment replaces the version we tabled before the Recess. The only change is a provision to ensure that previous authorisations would not be automatically extinguished until time (up to 12 months) had been allowed for new works to be completed.
§ In implementing these new powers, authorities would be required to have regard to statutory guidance. Clause 64 already provides for such guidance to be issued.
§ The amendment also complements the provisions in Clause 56 which we discussed earlier which require local authorities to plan for the needs of disabled people when preparing their rights of way improvement plans. We believe that that will be a major aid in promoting increased access for people with mobility problems. I beg to move.
§ Lord Addington
I thank the Government for bringing forward this amendment. The problems of the disabled are not entirely covered by the amendment. Its emphasis is on gates and stiles. For someone with moderate mobility difficulties, the preparation of the surface area is equally important. 452 There is little point in having an open gate if one has to go through a quagmire to reach it. I am glad to see this amendment and hope that it will deal with some of the problems we debated earlier.
§ Baroness Darcy de Knayth
I warmly welcome the amendment. On 23rd May a similar amendment was introduced in another place by David Heath. Mr Michael Meacher said at col. 836 of the Official Report that he would consider it carefully and that the Government might make proposals at a later stage of the Bill's passage. I am delighted that the Government have listened, considered and responded so speedily and positively, bringing forward the amendment at the earliest possible stage of the Bill's passage through this House.
I should declare that I am president of the disabled drivers countryside access group. Any accessing of the countryside by me in my wheelchair is purely notional to date. The group welcomes the amendment and believes that it would provide local authorities with useful powers.
The clause is enabling. There is no compulsion and no power to make improvements if the landowner objects. I do not think that there should be compulsion. That would be going too far. It would be welcome and helpful if the Minister could underline the Government's commitment—they have demonstrated it by bringing forward the amendment so speedily—to enabling people with mobility problems to get around and enjoy the countryside by stating on the record that the Government hope that local authorities and landowners will co-operate and go along with the spirit of the amendment. The provision is most welcome and will be a real improvement to what is already in the Bill.
§ Lord Whitty
I am perfectly prepared to respond to the noble Baroness's suggestion that we are committed to trying to ensure that the interests of people with mobility problems are addressed in the improvement plan; and we would hope that authorities and landowners could meet the spirit of that intention in their plans and activity.
The noble Lord, Lord Addington, referred to surfaces as well as structures. The degree of doubt which the amendment resolves relates to the powers of local authorities to address structures. There can be other forms of agreement with landowners which might also help to facilitate access. This amendment deals specifically with the powers relating to structures because there is an element of doubt there. We need to ensure that local authorities have that power. That is what I believe these amendments provide.
§ On Question, amendment agreed to.
§ Clause 64, as amended, agreed to.
§ Clause 65 agreed to.453
Lord Whitty moved Amendment No. 451:
After Clause 65, insert the following new clause—