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Baroness Farrington of Ribbleton: The Bill provides a right of access to land for "the purposes of open-air recreation". This term was not defined in drafting the Bill because we considered that a definition would be undesirably restrictive and unnecessary.

The noble Earl, Lord Caithness, questioned the establishment of a new principle. To the noble Earl I would say that the Bill follows the pattern set by the National Parks and Access to the Countryside Act 1949. As under that Act, the Bill lists excluded activities rather than included activities. That list has been updated and now rules out activities such as hang-gliding as well as fishing, horse riding and organised games.

The effect of Amendment No. 67 would be to prevent activities other than walking which we would expect might take place under the new right--for example, bird-watching, picnicking, jogging or taking photographs. Limiting the right to being able to "walk over" the land could cast doubt--

The Earl of Onslow: Surely we jog on our feet. Amendment No. 69 refers to "on foot". We cannot jog on our hands.

Baroness Farrington of Ribbleton: I seriously doubt whether there is anything the noble Earl cannot do. I think that that is extremely unlikely. I should expect him to demonstrate his inability to do so!

Activities such as sitting and reading should be encompassed within the provision. There should be no concerns that the term "remain on" in the Bill could lead to the right being used other than as intended. The phrase in full is,


The definition proposed by Amendment No. 67 is narrower than the right we wish to provide and potentially limiting activities such as sitting to eat a sandwich and enjoy the view we believe would be undesirable. The basic right is to use the right of way--it is to pass and re-pass--and incidental activities. I understand that that has recently been extended by the courts. However, the new statutory right is not intended to limit to passing and re-passing. It deliberately makes clear that, for example, picnics will be permitted.

The noble Baroness accepted that there is a need to include reference not only to wheelchairs but buggies. Amendment No. 69 would clarify the general intention with regard to access on foot. I remind the Committee that we have made clear that it is not a right for cyclists, horse riders or motor vehicles, and these are prevented by the restrictions set out in Schedule 2 to the Bill.

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Under the Bill as currently drafted we can, if necessary and by regulations, add to the list of activities falling outside the scope of the right. The definition of open-air recreation given in Amendment No. 22 would be likely to be unnecessarily restrictive. It would exclude activities which can properly take place inside or outside. We believe that those excercising the new statutory right should be able to stop, sit and read. Many of those are activities not necessarily carried out in the open air.

With those explanations, I hope that the Committee will agree that the nature of the right, which is indeed a modest one, is made clear by the expression "open-air recreation" taken together with the restricted activities in Schedule 2. I hope that the noble Baroness will not feel it necessary to press the amendment.

Baroness Byford: I thank the Minister for her response. I was glad that she reminded us that the list that was laid down in 1949 has been updated. As I cast my mind back to 1949, I realised that many of the outdoor recreational activities that people are involved in today would have been unheard of then. The main purpose of my amendments was to define that the principal recreation for which access should be granted was walking on foot. The Minister referred to picnicking, which is allowed, but the lighting of fires and camping are not. I accept that.

I have heard what the Minister has to say and at this stage I shall not push the amendment any further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 to 30 not moved.]

Baroness Miller of Chilthorne Domer moved Amendment No. 31:


    Page 2, line 21, at end insert (", or


(b) land which fell within paragraph (a) above on the day which this Act received Royal Assent but which has subsequently ceased to be common land within the meaning of the Commons Registration Act 1965,
but does not include land which has ceased to be common land under a statutory process of compulsory purchase or exchange.").

The noble Baroness said: The purpose of the amendment is to address a perceived gap in the legislation: the threat to registered common land that could be at risk of deregistration. Those who perceive a gap in the Bill might decide that they do not want to have to grant access and might press for deregistration. Although there is not a great deal of new evidence of commons being deregistered, it is a real threat and it is hard to understand why the Government would not want to address it. Given that Parliament created the official registers of common land to ensure that it was safeguarded for the future, it would surely be sensible to include a precaution in the Bill.

When discussing Amendment No. 6, the Minister said that proposals to amend the legislation on commons were in the pipeline. Our worry is that it might be a very long pipeline. In the meantime, as access comes in, a number of commons could be deregistered and be lost for ever.

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I should like to hear any reasons why the Government might not want to accept the amendment. They might argue that deregistration is only a theoretical risk, because the Commons Registration Act 1965 allows land to be kept on the register of commons even if the commoners' rights have been lost, as long as it is open, uncultivated and unoccupied, which is known legally as "waste land of a manor". However, that protection is quickly lost if the owner of a common ploughs and cultivates it. Even a one-off action could strip the land of its legal status.

The Government might also argue that it would be wrong to freeze the application of the new access rights to commons registered at Royal Assent, because certain specific areas of land are known to have been mistakenly registered as commons. That argument does not hold water either, because there are no powers to remove such land from the register, so the amendment would have no effect in such cases. In any event, houses and gardens are excepted land under Schedule 1.

The law allows the compulsory purchase of common land or the provision of exchange land where commons are taken for necessary development. It could be argued that the amendment would neuter such arrangements and thereby work against the public interest, but that is not our intention. We would be happy if the Government wanted to write in a suitable saving.

In the interests of preserving commons as they were intended to be preserved and not leaving a loophole, I beg to move.

10 p.m.

Baroness Fookes: I rise to speak to Amendments Nos. 152, 154 and 190, which stand in my name. The first two are simply paving amendments. The main one is Amendment No. 190.

My main interest in the Bill is the future of downlands and heathlands. I do not want to enter an argument over definition. Therefore, for the purposes of this amendment I simply use the words "downland" and "heathland" as they are used in common parlance. Such lands are much under threat. A great deal of them has already been lost and many of the lands that remain are small and fragmentary. Indeed, my noble friend Lady Byford made the point that it may be a good idea to try to exempt such tiny pieces of land so that they are maintained. However, that obviously does not find favour with Ministers and therefore I believe that it is necessary to try to protect such land.

One would expect a Bill such as this to offer additional safeguards to the precious land that is left. However, I fear that the law of unintended consequences may take over. As drafted, the Bill allows for reviews of the definitive maps which show the open access land to take place at least every 10 years and possibly less than that because regulations could be invoked for a different timescale. In my submission, that will create grave uncertainty for the walkers and ramblers, who may not know at any one

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time precisely what is or is not included in open access. Clearly it also represents an uncertainty for landowners, who may well be dissuaded from acting in the best interests of the land if they feel that any changes which they make could make their land more likely to be open access land.

It may be easiest to make clear what I have in mind if I give a case history. I have the permission of the owner/occupier to mention his name and his farm. He is Mr George Atkinson who has 750 acres on the South Downs. On his mixed farm is a very beautiful, rather hidden, steep valley called Hockham Coombe. It is a delight. It is rich in wild flowers and butterflies and is a small, very fragile area. It is overlooked by the South Downs Way and therefore it would be perfectly possible for those who sought to see the rather precious, delicate valley to do so without going down into it. However, the valley bottom has been improved for grazing. Therefore, Mr Atkinson is uncertain as to whether in the future it could be categorised as "open country" and therefore open to access, which could put that rather fragile piece of country very much at risk.

The farm contains a large field of arable land at the top of the down. It would help the narrow, little valley enormously if the field were allowed to revert to downland. A number of bodies support such a move, including English Nature, the Wildlife Trust, the Countryside Agency and the relevant local authorities. However, Mr Atkinson is adamant that he does not want to make the change if at a later stage it could be redesignated as open access land.

That leads me to the main amendment in the group. I seek to remove uncertainty so that once the maps have been prepared and set forth in statutory form they should be regarded as permanent and not subject to periodic reviews in the way that the Bill envisages.

Under my amendment it would be possible to alter the open access in two different sets of circumstances. That could be done, first, under the Town and Country Planning Act 1990, which could remove land from open access for development using the proper statutory controls. Secondly, it would not be possible to create new open access land without the consent of the landowner concerned. That may sound somewhat restrictive but I am sure that there are various ways in which in the future landowners could be persuaded to open up more land for access if they were not forced to do so. First, there is good old good will. When people are not under threat very often they are far more willing to make adjustments than if they are. And of course, there are many ways in which one could alter the balance through, for example, grants conditional upon open access, possibly changes in capital taxation and any other way that one might think of in the future which might persuade landowners, rather than threatening them, to make changes to allow more open access.

I have given this one case history but it could be repeated all over in areas where there is heathland and downland. It would be a great pity if this Bill, which is intended to help the countryside and to give access,

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dissuaded landowners from making changes in the management of their land which will be for the benefit of all. Therefore, there will be no incentive to change from arable land on the downs to a more traditional form of downland with that threat of periodic review hanging over them.

For those reasons, I have tabled these amendments. I shall be interested to hear the Minister's response.


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