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The noble Baroness said: In moving Amendment No. 4, I shall speak also to Amendments Nos. 23, 24, 25 and 178. Perhaps I may also speak to Amendment No. 5 to be moved shortly by my noble friend Lord Caithness.
Included in the many and vast briefings we have received was one from the Countryside Agency. In its paragraph 4 it describes its recommendations and measures providing for the creation of maps as "sensible and adequate". Those are the words I am after as regards my amendments which deal with the size of land.
I turn to Amendment No. 23 which leaves out the words from (a) and inserts "consists". I refer also to Amendment No. 25, in Clause 1, page 2, line 17, which, after "predominantly" sets in the figure which is 75 per cent or more in area.
These are in fact probing amendments. They attempt to persuade the Government that some parcels of land are too small to be included if we balance the requirements of people walking and those who work the land. First, Amendment No. 18 deletes the reference to land which,
Ministers said that "predominantly" means "prevailing" or "mostly"--Standing Committee, 4th April 2000, col. 115--which does not make the matter much clearer. The purpose is said to be to give some flexibility to the countryside bodies, yet that flexibility would be applied to take rights away from landowners. The Bill should provide tests that can be applied, rather than leave human rights to the whims of government agencies.
I turn to Amendments Nos. 24 and 25 which also come within this group. Amendment No. 24 seeks to omit the words "wholly or predominantly", about which I am seeking a clearer definition from the Minister. The mapping of access land should be focused closely on land which is,
The term "predominantly" was used to describe "open country" in the National Parks and Access to the Countryside Act 1949. However, the context in which the term was used in that Act is quite different from the way it is used in this Bill. That Act defined the areas of land essentially for the purposes of making access agreements over them, while the current Bill is concerned solely with the imposition of statutory rights on owners. Where agreements are involved, a more relaxed definition is desirable. Where the statutory right is involved, the Government should be far more explicit as to which types of land are to be affected. Removing the word "predominantly" will go some way towards making what is currently an imprecise provision much more precise.
Given that Clause 4(5) allows the Countryside Agency or the Countryside Council for Wales to determine the boundary of any area of open country that can be treated as coinciding with a particular physical feature--for example, a wall, fence or road--it is not necessary for the agencies to have the discretion to include land which is predominantly,
The Minister argued in Committee in another place that, rather than narrowing down what land should be mapped, the agencies responsible for undertaking the mapping should be allowed as much local flexibility as possible. However, the more flexibility that is provided, the greater the likelihood of regional variations in what land is or is not mapped. That may well lead to inconsistencies in the mapping.
An appeals system will be in place for those who feel that their land has been wrongly mapped. But without greater clarity over what land should be mapped, such appeals may create excessive burdens on the agencies concerned, extending the period before which any map may be published and the right of access put in place. By removing the uncertainty and having a clear-cut definition and a basis from which to map, the number
Lord Brittan of Spennithorne: I fully support the amendment proposed by my noble friend. I disagree on only one small point of phraseology; that is, his description of the amendments as "technical". They are technical in a sense, but they also raise points of principle as well as practicality.
Of course, we are all agreed that there is no point in allowing a right of access to tiny parcels of land. We are also agreed that the provision that land should be mountain, moor or whatever in order for access to be granted should not be applied literally to mean that if a tiny bit is not, the right of access should not be given. Those are practical points. But the point of principle is who decides and how it is to be decided where the boundaries apply.
Essentially, the scheme set out in the Bill leaves a high degree of discretion to the public agencies concerned. The question this Committee must decide is whether we want those broad definitions to be applied using words like "predominantly" in relation to the size of the land, giving the discretion to the agencies concerned, or whether we want to be more precise.
I believe that my noble friend's point is absolutely correct. When it is a question of agreement or something of that kind, looser language may be appropriate. But when we are talking about legal rights which, by definition and by concession, take away existing property rights, we must be precise. It is right that those should be determined by Parliament and not by government agencies, however well meaning and even if a right of appeal is provided. For that reason, I believe that the provision to allow the exclusion of small parcels of land should take the form of a definition with a number, whatever it may be, relating to the size and area of land which is excluded, rather than giving the discretion to the agency to take a view.
Similarly, at the other end of the scale, the decision that land can be included if it is--perhaps I may use yet another adverb--overwhelmingly land which comes within the specified categories should not be determined simply by the use of an adverb, whether "predominantly" or any other, which must then be interpreted by the government agency. It should be set out in a more precise form.
Therefore, one should say either--and perhaps going to the extreme--that the whole of the land must be of the category concerned, or--if that goes too far and I suspect that it does--that a specified percentage should be applied. That seems to me to be preferable.
Earl Peel: Having put my name to Amendment No. 24, I want to concur with everything said by my noble friends and I have no intention of repeating it. The provision in the Bill is far too woolly and vague and will give ridiculous opportunities, no matter how well meaning, to the relevant access authorities.
I want to refer to a particular issue and I do not know whether my noble friend Lady Byford did so. I should have thought that Clause 4(5)(b) gave enough flexibility to the relevant access authority to deal with the point raised. I am not happy with the wording, but it tightens up and constrains the mapping process to particular physical features, rather than relying on the woolly expressions "wholly" or "predominantly". Perhaps in reply the Minister will tell the Committee whether that provision is sufficient to deal with the problem.
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