Countryside and Rights of Way Bill — Driving of Mechanically Propelled Vehicles Elsewhere than on Roads — 14 Jun 2000

As amended in the Standing Committee, further considered.

I beg to move amendment No. 33, in page 24, line 41, after "path", insert--

'and every way which was shown in any definitive map and statement as a road used as a public path under the National Parks and Access to the Countryside Act 1949 and which was subsequently reclassified under Schedule 3 to the Countryside Act 1968 or section 54 of the Wildlife and Countryside Act 1981 as a bridleway, and every way which is shown on any definitive map and statement as a carriage road footpath or CRF, or as a carriage road bridleway or CRB,'.

The legal burdens on local authorities in relation to rights of way orders and maps are considerable and complex. Proposals, such as this, to reduce unnecessary burdens are to be welcomed.

Amendment, by leave, withdrawn.

Amendment made: No. 291, in page 25, line 35, at end insert--

'(7A) Where--

(a) by virtue of an order under subsection (3) of section 71 ("the commencement order") containing such provision as is mentioned in subsection (6) of that section, an order under Part III of the 1981 Act ("the Part III order") takes effect, after the commencement of section 43, in relation to any way which, immediately before that commencement, was shown in a definitive map and statement as a road used as a public path,

(b) the commencement order does not prevent subsection (1) from having effect on that commencement in relation to that way, and

(c) if the Part III order had taken effect before that commencement, that way would not have fallen within subsection (1),

all rights over that way which exist only by virtue of subsection (1) shall be extinguished when the Part III order takes effect.'.-- [Mr. Meacher.]

Amendment made:

No. 292, in page 45, line 30, at end insert--

'( ) In subsection (3)(c)(i) for "a right of way to which this Part applies" there is substituted "a right of way such that the land over which the right subsists is a public path or, subject to section 54A, a byway open to all traffic".'.

No. 293, in page 45, line 41 after "ought", insert--

', subject to section 54A,'.

No. 294, in page 46, line 50, at end insert--

'Register of applications under section 53

53B.--(1) Every surveying authority shall keep, in such manner as may be prescribed, a register containing such information as may be prescribed with respect to applications under section 53(5).

(2) The register shall contain such information as may be prescribed with respect to the manner in which such applications have been dealt with.

(3) Regulations may make provision for the register to be kept in two or more parts, each part containing such information relating to applications under section 53(5) as may be prescribed.

(4) Regulations may make provision--

(a) for a specified part of the register to contain copies of applications and of the maps submitted with them, and

(b) for the entry relating to any application, and everything relating to it, to be removed from any part of the register when the application (including any appeal to the Secretary of State) has been finally disposed of (without prejudice to the inclusion of any different entry relating to it in another part of the register).

(5) Every register kept under this section shall be available for inspection free of charge at all reasonable hours.

(6) In this section--

"prescribed" means prescribed by regulations;

"regulations" means regulations made by the Secretary of State by statutory instrument;

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

No. 295, in page 47, line 13 at end insert--

'3A. After section 54 of that Act there is inserted--

"BOATs not to be added to definitive maps

54A.--(1) No order under this Part shall, after the cut-off date, modify a definitive map and statement so as to show as a byway open to all traffic any way not shown in the map and statement as a highway of any description.

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

(3) The Secretary of State may make regulations--

(a) substituting as the cut-off date a date later than the date specified in subsection (1) or for the time being substituted under this paragraph;

(b) containing such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the operation of subsection (1), including in particular its operation in relation to--

(i) an order under section 53(2) for which on the cut-off date an application is pending,

(ii) an order under this Part which on that date has been made but not confirmed,

(iii) an order under section 55 made after that date, or

(iv) an order under this Part relating to any way as respects which such an order, or any provision of such an order, has after that date been to any extent quashed.

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

(a) may specify different dates for different areas; but

(b) may not specify a date later than 1st January 2031, except as respects an area within subsection (5).

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

(a) the Isles of Scilly, or

(b) an area which, at any time before the repeal by section 73 of the 1981 Act of sections 27 to 34 of the National Parks and Access to the Countryside Act 1949--

(i) was excluded from the operation of those sections by virtue of any provision of the 1949 Act, or

(ii) would have been so excluded but for a resolution having effect under section 35(2) of that Act.

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

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

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

No. 296, in page 47, line 13, at end insert--

'. In section 55 of that Act (no further surveys or reviews under the National Parks and Access to the Countryside Act 1949), after subsection (6) there is inserted--

"(7) Every way which--

(a) in pursuance of an order under subsection (5) is shown in a definitive map and statement as a byway open to all traffic, a bridleway or a footpath, and

(b) before the making of the order, was shown in the map and statement under review as a road used as a public path,

shall be a highway maintainable at the public expense.

(8) Subsection (7) does not oblige a highway authority to provide, on a way shown in a definitive map and statement as a byway open to all traffic, a metalled carriage-way or a carriage-way which is by any other means provided with a surface suitable for the passage of vehicles.".'. -- [Mr. Meacher.]

I beg to move amendment No. 304, in page 47, line 15, at end insert--

'(1A) In paragraphs (a) and (b) of subsection (1), the words from "so however" to the end of the paragraph are omitted in each case.'.

If the Definitive Map were indeed definitive, that would be an end to the matter.

without prejudice to other rights.

without prejudice to section 51(1) of the Wildlife and Countryside Act 1981

unless prima facie evidence is adduced to the contrary,

As it appears that you and your visitors are driving over our client's land to reach your house, we are offering you an amnesty whereby you can come to a settlement with our clients at a favourable rate.

If the solicitors carried out all the normal searches and no problems with access were revealed, then the solicitors would not have been negligent.

If there is not clear negligence and they are simply the victims of one of the more arcane aspects of our legal history, ie laws concerning common land, they may be left without redress. If that is the situation, then they have to look to Parliament to amend the appropriate law.

The situation that the right hon. Gentleman has described seems, on the face of it, to be outrageous.

He was kind enough to add:

Were our roles reversed, I might well have made a similar speech.

although Bakewell may well have the letter of the law on its side, I wonder whether it is able to defend its position morally, as well as legally.

in some ways, common land law is ripe for review

there may well be a case for placing some reasonable limit on the charge that the owner is entitled to make.

I shall watch with interest the level of charges that Bakewell imposes and compare them with the reasonable charges for similar access made by county councils and the National Trust.--[ Official Report , 3 November 1999; Vol. 337, c. 271-74.]

In the meantime, you may like to be aware that, following discussions between Chris Mullin and Sir George Young, the department is investigating how we might curb the ability of landowners to make excessive charges for the grant of easements to allow vehicular access over common land.

We have identified a range of options which may achieve this objective, but have not reached any firm conclusions yet on the best way forward.

Against that background, the House might hope that the Minister will smile on the amendments. However, more recently, the Department's tone has changed from, "How can we help?" to, "I am sorry, it is all too difficult." Less than a month after the letter from which I have quoted was written, the deal was off.

it would be misleading of me to suggest it is likely to receive Government support.

does not deal with the problems of vehicular access.

A reasonable capital charge would be no more than 5 per cent. of the value of the property.

Discounts for those who could show long use.

The option of payment now or at a time of sale.

Provision for those who could show financial hardship.

No question of vehicular access being denied whilst negotiations take place.

The trustees have recently been made aware, by their solicitors, that there are new legal guidelines about vehicular access over common land following . . . (Hanning v. Top Deck Travel Group.) In simple terms the court decided that because it has been illegal since 1925 to drive over common land then householders could not acquire a prescriptive right through an illegal activity . . .

Recently mortgage lenders have become reluctant to provide finance for purchasers of this type of property unless an express right of way has been granted. This has meant that some people were experiencing difficulties in selling their properties. So the Gresham Estate--

now has to find a way for homeowners selling their properties to obtain a formal easement . . . The District Valuer has indicated that he considers that a reasonable charge for this type of right of access is 10 per cent. of the property value. Other owners of common land charge much more than this figure (up to 30 per cent.) . . . As trustees we have a legal duty to obtain "best value" for any assets that we sell so it would not be possible to charge less than the 10 per cent. mentioned above.

Others including ourselves who have retired here will have to use our savings that was for our old age but some of our residents may not even be in a position to do this.

It is a fact of life. I think people should pay. I don't think people should have something for nothing.

It appears that the person who is getting something for nothing is the lord of the manor, who is making these extortionate demands.

Subject to a maximum discount of £10,000 on the Council's valuation of the right of access.

a reasonable capital charge would be no more than 5 per cent.,

and as the relevant section of the Local Government Act 1972 states:

Except with the consent of the Secretary of State, a council shall not dispose of land . . . for a consideration less than the best that can reasonably be obtained

Amendment, by leave, withdrawn.

I beg to move amendment No. 227, in page 50, line 14, at end insert--

the Secretaries of State consider that authorities should make use of the other powers available unless there are good reasons for not doing so.

Amendment agreed to.

Amendments made: No. 190, in page 27, line 2, leave out from beginning to first "to" in line 4 and insert--

'(a) provide for any relevant provision which relates--

(i) to highways or highways of a particular description,

(ii) to things done on or in connection with highways or highways of a particular description, or

(iii) to the creation, stopping up or diversion of highways or highways of a particular description,

not to apply, or to apply with or without modification, in relation'.

No. 191, in page 27, line 6, leave out from beginning to "make".

No. 192, in page 27, line 9, leave out "that paragraph" and insert "paragraph (a)".

No. 193, in page 27, leave out lines 13 to 15 and insert--

'(3) The powers conferred by this section may be exercised in relation to a provision contained in an Act falling within subsection (2)(a) even though the provision is amended or inserted by this Act.'.-- [Mr. Mullin.]

I beg to move amendment No. 72, in page 50, line 26, 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 the land is situated for the making of a public path creation order to create a footpath or bridleway over the land.

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

(3) An application may be made by the owner, lessee or occupier of any land used for agriculture, forestry or the breeding or keeping of horses for a creation order concurrently with an application under section 118ZA or 119ZA for a public path diversion order or extinguishment order, and such an application is referred to in this section as a 'concurrent application'.

(4) Regulations may provide--

(a) that a prescribed fee is payable on the making of a concurrent application under this section, and

(b) that further prescribed charges are payable by the applicant if the application is granted.

(5) An application under this section is not to be taken to be received by the council until the requirements of regulations under section 121A below have been satisfied in relation to it.

(6) A council which receives an application under this section shall, after consulting such persons as may be prescribed, determine the application as soon as reasonably practicable.

(7) Before determining to make a public path creation order on a concurrent application under this section, the council may require the applicant to enter into an agreement with them to

significant rural-based industry centres upon horses . . . The Government has assigned the Ministry of Agriculture, Fisheries and Food responsibility for working with the horse industry to help develop its potential for rural-based employment.

to the needs of agriculture and forestry,

agriculture, forestry or the breeding or keeping of horses.

Amendment, by leave, withdrawn.

I beg to move amendment No. 228, in page 51, line 2, leave out from "(f)" to first "a" in line 4.

Mr. Deputy Speaker:

With this it will be convenient to discuss the following: Government amendment No. 229.

it is neither desirable nor appropriate for crime prevention to become a reason in itself for the permanent closure of rights of way.

There is no case for the powers to apply beyond urban areas . . . It is a question of targeting: we do not have the resources that we would all like to put into the police force. Risks of vandalism, burglary and vehicle-related theft were also lower for retail and manufacturing premises in rural locations. Burglary forms a smaller proportion of crime in rural areas than it does elsewhere.--[ Official Report, Standing Committee B , 16 May 2000; c. 663.]

Timeo danaos et dona ferentes.

Amendment agreed to.

Amendments made: No. 229, in page 51, line 6, after second "of" insert--

(b) for references to a footpath or bridleway of references to a highway'.-- [Mr. Meacher.]

I beg to move amendment No. 43, in page 58, line 16, leave out "significant damage" and insert "damage or disturbance".

Mr. Deputy Speaker (Sir Alan Haselhurst):

With this it will be convenient to discuss the following: Government amendment No. 263.

Amendment, by leave, withdrawn.

Amendments made: No. 263, in page 58, line 19, leave out "highway" and insert--

I beg to move amendment No. 215, in page 69, line 17, at end insert--

'. After section 135 of the 1980 Act there is inserted--

"Temporary diversion for dangerous works

135A.--(1) Where works of a prescribed description are likely to cause danger to users of a footpath or bridleway which passes over any land, the occupier of the land may, subject to the provisions of this section, temporarily divert the footpath or bridleway.

(2) A person may not under this section divert any part of a footpath or bridleway if--

(a) the period or periods for which that part has been diverted under this section, and

(b) the period or periods for which any other part of the same footpath or bridleway passing over land occupied by him has been diverted under this section,

amount in aggregate to more than five days in any one calendar year.

(3) Where a person diverts a footpath or bridleway under this section--

(a) he shall do so in a manner which is reasonably convenient for the exercise of the public right of way, and

(b) where the diversion is by means of a temporary footpath or bridleway, he shall so indicate the line of the temporary footpath or bridleway on the ground to not less than the minimum width that it is apparent to members of the public wishing to use it.

(4) This section does not authorise a person to divert a footpath or bridleway on to land not occupied by him without the consent of the occupier of that land and of any other person whose consent is needed to obtain access to it.

(5) The person by whom a footpath or bridleway is diverted under this section shall--

(a) at least fourteen days before the commencement of the diversion, give notice of the diversion in accordance with subsection (6) below,

(b) at least seven days before the commencement of the diversion, publish notice of the diversion in a local newspaper circulating in the area in which the footpath or bridleway is situated, and

(c) displays such notices as may be prescribed at such places, in such manner and at such times before or during the diversion as may be prescribed.

(6) Notice under subsection (5)(a) above shall be given--

(a) to the highway authority for the footpath or bridleway,

(b) if the footpath or bridleway is on or contiguous with access land in England, to the Countryside Agency, and

(c) if the footpath or bridleway is on or contiguous with access land in Wales, to the Countryside Council for Wales.

(7) A notice under subsection (5)(a), (b) or (c) above shall be in such form and contain such information as may be prescribed.

Amendment agreed to.

Amendment made: No. 273, in page 69, line 32, at end insert--

I beg to move amendment No. 5, in page 28, line 5, at end insert--

(za) the desirability of ensuring that the overall length of local rights of way is increased during each consecutive period of 12 months beginning with the date of publication of the rights of way improvement plan'.

Amendment, by leave, withdrawn.

Amendments made: No. 297, in page 29, line 7, leave out from beginning to "the".

No. 298, in page 29, line 9, after "appropriate)," insert--

'(ea) such persons as the Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) may by regulations prescribe in relation to the local highway authority's area;'.

No. 299, in page 29, line 10, leave out "they" and insert "the local highway authority".

No. 300, in page 29, line 36, at end insert--

'( ) Regulations under subsection (1)(ea) shall be made by statutory instrument, and a statutory instrument containing such regulations made by the Secretary of State shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.

No. 301, in page 29, line 39, leave out from "1988" to end of line 42.-- [Mr. Meacher.]

Amendments made: No. 225, in page 31, leave out lines 19 to 21.

No. 226, in page 31, leave out lines 25 and 26.-- [Mr. Meacher.]

I beg to move amendment No. 71, in page 33, line 15, at end insert--

'(5) It shall be the duty of the local highway authority to monitor from time to time the compliance with any order made under subsection (1) above, and to bring proceedings under subsection (4) if the obstruction is not removed within the time specified in the order.'.

Amendment, by leave, withdrawn.

Amendment made: No. 194, in page 33, line 27, leave out from "(viii)" to end of line 30 and insert--

'a site of special scientific interest (within the meaning of the Wildlife and Countryside Act 1981)'.-- [Mr. Kevin Hughes.]

Amendment proposed: No. 136, in page 75, line 32, at end insert--

'(5A) Where a way across a common has been used as the vehicular access to a dwellinghouse as of right and without the access having been called into question by proceedings for 20 years prior to 3rd November 1999 then any person shall have lawful authority to drive a mechanically propelled vehicle to and from the dwellinghouse.'.-- [Mr. Clifton-Brown.]

Question put, That the amendment be made:--

The House divided: Ayes 158, Noes 276.

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