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Lord Greaves: I do not want to interfere too much in matters relating to Wales, but it seems to me that if there is a major problem with the coed cae land, we must ask why it is being mapped as access land in the first place. If there is a widespread problem and this land should not be walked on, there will be huge confusion if it is mapped as access land, put on the access maps and then declared as excepted land where people cannot walk. If the problem is as it has been reported, the answer is that it should not be mapped as access land in the first place. It is not a question of it being excepted land; it should not be marked as access land in the first place. That seems to me to be the position.

In my experience, the real problem in much of the Welsh uplands, particularly in mid-Wales, is that there are no rights of way from the valleys to the open country up on the ridges. That problem needs to be tackled. Creating routes onto the uplands obviously involves taking them through farmland and presumably through the higher coed cae land. That is the way in which it seems to me the problem should be tackled.

That leads me to the wider problem that I have with these amendments; namely, that the difficulty is greatly exaggerated if the mapping operation goes as it ought to and inevitably will. The suggestion seems to be that any permanent pasture, any long leys in the uplands, will first of all be mapped as access land and will, or will not, be accepted as access land.

As I understand it--but perhaps I have misunderstood and shall be told I am wrong--the whole purpose under the Bill of excepted land is to provide a means of preventing people walking on land which has been mapped as access land but for some reason, whether temporary or long-term, it is not desirable that people should walk on it for reasons of conservation or whatever.

The land in the uplands that is referred to is in the gritstone Pennines--it is the upland pastures. By and large, these are enclosed, often in small fields. That is true in many other upland areas. Typically the farms might consist of between 40 and 60 acres, not hectares. The fields are used for various types of grass. Traditionally, most were permanent pasture and upland hay meadows. They will not have been re-seeded for a long time. They might be fertilised and drained from time to time and the thistles might be dug out, but that is all. They were permanent grassland. As the noble Lord, Lord Jopling, said, that has changed

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in recent years as they have been turned into three-year or five-year leys. Sometimes the period is longer. The old vegetation is scraped off and the land is re-seeded, and it might be 10 years before anything else is done to it, because these are not prosperous farms. These are fields on farms and are clearly within the enclosed farms (not on the moor) where grass is grown. There are still some hay meadows, but more often the grass is cut for silage.

The noble Earl, Lord Peel, spoke earlier about lapwings. In the mid-Pennines there has been a catastrophic drop in lapwings of some 75 or 80 per cent. It has nothing to do with moorland; it has to do with the improved grassland farming techniques which have removed the wet corners of the field, the areas where rushes grew and where the lapwings used to build their nest. The birds have gone now, because farming has gone right to the corners of the fields as a result of problems such as subsidies for sheep being paid on headage.

Surely all these areas, whether they are still upland hay meadows, permanent pasture or modern fields of grass grown for a combination of silage and pasture, will not be mapped as access land in the first place. They are not heath; they are not moor; they are not mountain; they are not common land. So why would they be mapped as access land? This is enclosed farmland where the crop happens to be grass. That is the situation.

If you look around these areas, the whole landscape is green. It is a much brighter green than it used to be with these modern techniques, but it is green and the crop is grass. Surely such areas will not be mapped as access land in the first place. Therefore, the question of them being "excepted land" does not apply. The description of "excepted land" only applies after it has been mapped. That seems to me to be the position. If the Minister tells me that I am wrong, I shall join the rebellion.

The only problem over grass areas as regards "excepted land" is where areas of moorland or heath are being taken, improved and turned into grassland. There is a problem when that happens because grass is a crop like any other. It seems to me that the definition of "excepted land" needs considering most carefully in relation to grass, but that applies only to quite a small number of areas. Therefore,unless I am completely wrong about the sort of area that will be mapped in the first place, it is a great exaggeration to suggest that there is a huge problem here. Perhaps the Minister will be able to confirm whether I am right or wrong.

The Earl of Caithness: I rather followed the line of the noble Lord, Lord Greaves, to begin with but then I asked myself, "If both mine and his reasoning are right, what is the point of paragraph 1 in Part I of the schedule?" Surely the Government would not have inserted the reference to the "previous twelve months" if the situation was not different from what the noble Lord just argued. It is because paragraph 1 appears in

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the schedule that one has then to consider the reasons why the Government included it. We must ensure that the very land we are talking about is not covered.

Lord McIntosh of Haringey: Perhaps I may begin by assuring the Committee that the Government take such issues extremely seriously. We gave a great deal of thought in the structure of the Bill to the issue of cultivated land. We also considered how we should use the mapping process and the concept of "excepted land" and took that into account in the way in which the Bill is framed. After a very thoughtful and careful debate, I can say with great relief how much I agree with the noble Lord, Lord Greaves. He has not got it wrong; indeed, he has got the structure of the Bill exactly right and described it with a great deal more personal knowledge than that to which I can aspire. Nevertheless, I hope that both he and the Committee will permit me to set out the way in which this matter is dealt with in the Bill.

Schedule 1 to the Bill sets out a short list of types of land use that are excepted from the right of access. It is the responsibility of the countryside bodies to map open country and registered common land. Those are the two fundamental elements in this construct. We expect that some areas of land will rightly qualify as predominantly open country--that is, mountain, moor, heath and down--even though the use of some of that land may be incompatible with the public right of access. I give way.

Lord Glentoran: I thank the noble Lord for giving way. We find ourselves returning to definitions. Can the noble Lord define "open land"? Is it land without a wall, land with a fence, land without a gate, or what?

12.15 a.m.

Lord McIntosh of Haringey: I do not believe that it would be desirable or welcome if I were to repeat the arguments that have already been aired about definition. If I may be allowed, the point that I am trying to make is about the nature of the mapping process. That is the essential way in which we must look at the concept of "excepted land". If we introduced the kind of amendments included in this group, it would be utterly counter-productive to Schedule 1. It would result in an unmanageable and obscure list of land uses that few would be able to remember--indeed, some in Wales that few would be able to pronounce--and fewer still could be relied on to interpret them accurately when out in the countryside.

I turn first to Amendments Nos. 49 and 52. Paragraph 1 of Schedule 1 provides that land will be excepted if soil has been disturbed within the previous 12 months by ploughing or drilling or similar agricultural or forestry activities for the purposes of planting or sowing crops or trees. The noble Earl, Lord Caithness, seems to think that is out of keeping with the rest of the categories of excepted land, but, of course, crops include grass grown for hay or silage. It is intended that land excepted from the right of access

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by virtue of paragraph 1 will be reasonably clearly identifiable. I believe that that has been the case. I do not think that anyone has challenged that.

It may appear that the definition of cultivated land in paragraph 1 is drawn narrowly. There is good reason for that. The exception by paragraph 1 of cultivated land is not the primary mechanism by which improved or semi-improved farmland is itself excluded from statutory right. It is the mapping process, undertaken by the countryside bodies, which will identify what is and is not open country and registered common land. That is the point that the noble Lord, Lord Greaves, made.

There is provision for an extensive framework of consultation and appeals on maps. Farmers and landowners and the public will be involved in the drawing up of maps. There will be an opportunity to comment on the way in which land has been included or excluded from the draft maps produced by the countryside bodies. The mapping of open country will be a highly focused task. It will need to look at individual fields in many areas in order to identify and exclude land which is not semi-natural, unimproved grazing.

As I said, landowners and others with an interest in land will be able, if necessary, to lodge appeals against provisional maps. Landowners will be able to object to the inclusion in maps of improved land such as the grasslands identified in Amendments Nos. 49 and 52 or the land regularly cultivated in Amendment No. 53--I shall return to Amendment No. 53 in a moment--which cannot be considered to be "open country".

Many noble Lords have expressed concern about access to fields used to take cuts of silage or hay. I acknowledge that could cause damage. Such land is unlikely to conform to the description of,


    "mountain, moor, heath or down"--

which are essentially semi-natural environments which have not been recently improved or cultivated--and farmers will have every opportunity to see that it is excluded from the maps.

It is even less likely that set-aside land--here I come back to Amendments Nos. 53 and 38--which by definition is land which has previously been in arable production--will be mapped as open country. I can give the noble Earl, Lord Mar and Kellie, the assurance he needs that that will not be a significant problem.

However, we recognise that some farmers may seek to cultivate or improve their land after maps of open country have been drawn up and confirmed. Part I of the Bill will not interfere with landowners' freedom to use their land as they think fit within the existing constraints.

The function of paragraph 1 is in effect to draw a line around land which, following ploughing or other disturbance of the soil for the purpose of growing crops, is fundamentally incompatible with continued public access and can be reasonably clearly identified as such.

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The fact that land has been ploughed or otherwise cultivated within the past year will mean that the exception from the right of access will be reasonably apparent to the casual walker. That is crucial to avoid unnecessary confusion and argument about whether right of access is exercisable over any particular parcel of land. That is poles apart from expecting a walker to make fine distinctions between improved and unimproved pasture.

I have not referred to Amendment No. 36 which concerns coed cae and ffryd land in Wales. Ffryd and coed cae vary in character across Wales. We do not believe that it would be right to make a blanket exclusion for all land of that kind. That should be considered on its merits in the mapping process on the same terms as I have described for any land which may be improved or semi-improved grassland when maps of open country are drawn up. It is for the Countryside Council for Wales to assess whether coed cae or ffryd land is mountain, moor, heath or down. Farmers and landowners will be able to object if they disagree with the classification of open country.

I turn to Amendment No. 50. I acknowledge that after conclusive maps of open country and registered open land have been published, land use may change in such a way that land does not fall within any of the exceptions in Schedule 1 but where access may pose problems for effective agricultural or silvicultural production.

I do not think that the concerns of the noble Duke, the Duke of Montrose, about lambing arise in the way that the Bill is drafted. Most open country will be upland from which ewes are brought down for lambing. Where lambing takes place on open country, we have already announced plans to review the restrictions on dogs--the animals most likely to cause disturbance to ewes lambing. It is also open to farmers to apply for directions to restrict access if necessary. Of course there is the general 28-day restriction. I recognise that the noble Duke does not believe that to be adequate for the purpose.


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