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Page 3, line 28, at end insert--
("( ) shall not show as open country any area of open country which, by reason of anything done on the land, or on other land contiguous or adjacent thereto, it appears expedient, for the purposes of avoiding danger to the public, to exclude,").

The noble Lord said: I shall also speak to Amendments Nos. 160 and 165. Amendment No. 159 would require the Countryside Agency and the Countryside Council for Wales to exclude land that is dangerous due to activities on it or on adjacent land. If land is likely to be closed permanently in the interests of public safety, there is little point in mapping it in the first place. It should be excluded from the outset. There should accordingly be an obligation on the countryside bodies to identify and exclude unsafe land during the mapping process.

Excluding such land from the right of access would also reduce the fear of cases being brought against occupiers for accidents that occurred due to features that are not specifically excluded in Clause 13, which deals with occupiers' liability.

Some areas are inherently dangerous as a result of past human activity on them. Why should the current owner suddenly have to incur costs to protect the public because of an imposed right? That is particularly relevant to old mines and quarries, which are spread across upland areas. Legislation exists

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obliging the owners of such land to make areas of old workings safe, but it is not comprehensive. Some mine openings and quarries do not require to be made safe and the Bill will provide a right of access to them. Claims against owners for injuries may arise from accidents to persons exercising their right. To avoid that, owners would have to incur costs in undertaking public safety risk assessments and in fencing off land, as well as greatly increasing their third party insurance cover.

The Mines and Quarries Act 1954 requires all mines not used for 12 months or more to have an efficient enclosure, barrier, plug or other device to prevent any person accidentally falling or entering the outlet. All such devices must be properly maintained. That Act does not apply to mines unused since before 9th August 1872, if the minerals mined were not coal, ironstone, shale or clay. Some workings for minerals such as lead or tin used before 1872 could still be dangerous, but they do not appear to be covered by existing legislation. There are many such workings in moorland areas, particularly in Cornwall.

Similarly, a quarry, working or otherwise, can be defined as a statutory nuisance under the Environmental Protection Act 1990 if it does not have a properly maintained barrier to prevent persons from falling in and,by reason of its accessibility from a highway or place of public resort, it constitutes a danger to the public. Would an owner with a disused quarry that is unfenced because it is not readily accessible have to fence it once the Bill establishes a right of access to land around it? I look forward to the Minister's answer.

Cases involving certain mines and quarries on potential access land that are not required by existing legislation to be fenced or otherwise protected to exclude the public could give rise to additional costs to owners and increased risk to the public. One way to reduce that would be to exclude land containing such mines and quarries from the right of access at the outset by not mapping it as access land, as the amendment provides. If that is not done, the issue of compensation for owners who incur costs would certainly arise.

There is a precedent for land to be excluded from the right of access on safety grounds. Section 80(1) of the National Parks and Access to the Countryside Act 1949 specifically provides that, where an authority feels that land is dangerous, it shall be excluded from any access agreement or order so as to avoid danger to the public. A similar provision is needed to provide safeguards in a situation where far more land will be open to the public under the current Bill.

I shall now speak to Amendment No. 165, which is consequential upon Amendment No. 159. This amendment suggests that the relevant body should not show on maps dangerous land as open country--an eminently common-sense amendment, I believe.

Amendment No. 160 again refers to mapping and removes the test that areas disregarded must be "small". The countryside bodies are given the discretion not to map areas that are so small that they

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would serve no useful purpose. Use of the word "small" is unhelpful as it could easily be considered that larger areas could also have no useful purpose, especially if they had no legal right of access and were remote or inaccessible from roads or public rights of way.

If smallness is removed as a criterion, areas could be excluded if they were not small but there was no demand for access to them or if they were isolated within much larger blocks of other land and there would be no value to the public in providing access to them; for example, rushy fields, which could be said to be moor or heath within larger blocks of improved grassland.

This amendment seeks to remove the smallness test, giving the countryside bodies discretion not to map access land of any size. The CA and CCW will then have greater flexibility to be pragmatic in deciding what to map and what not to map. In discussion on an amendment in Committee in another place which would have required the CA and CCW to exclude any areas of less than five hectares, the Under-Secretary stated that they would have the discretion to exclude areas higher or lower than the threshold. It appears that Ministers recognised that the discretion to omit large areas is important.

However, if the word "small" remains in Clause 4, that discretion could be limited because the CA or CCW would always be open to the challenge that the area that it was excluding was large and not small. Some rather theological arguments in court could be avoided by the omission of the word "small" as proposed. I beg to move.

Lord Lyell: I warn the Committee that, if Amendment No. 160 in this group is accepted, I shall not be able to call Amendment No. 161.

Baroness Farrington of Ribbleton: Clause 4(5)(a) gives to the countryside bodies a discretion to exclude from maps of open country any areas of land which are so small that they consider their inclusion would serve no useful purpose. We envisage that the countryside bodies will wish to apply sensible thresholds in mapping open country so that small parcels of land need not be identified and included on maps, having regard to such criteria as their location in proximity to where people live, the presence of more substantial areas of access land nearby and the accessibility of the land in question.

The bodies may well wish to apply different criteria to different circumstances, including different criteria between the categories of moor, heath and down. We do not wish the countryside bodies to be burdened with an impossible task of mapping every last piece of open country, however small such land might be and however little it might contribute to securing greater access opportunities for the public. That is achieved by Clause 4(5)(a) as it stands.

Amendment No. 160 would allow the countryside bodies to exclude any area of land from their maps on the basis that the inclusion of the land, however large,

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would none the less serve no useful purpose. Such a provision would run counter to what the mapping process is all about; namely, to identify and draw the boundaries of land which is open country or registered common land. It is not about the countryside bodies making judgments as to whether potentially huge tracts of open country should be left off the map altogether.

The reason why we have given the countryside bodies discretion not to show small areas of open country is simply pragmatism. We do not think it would be a sensible use of taxpayers' money for the mapping authorities to spend a great deal of time and effort searching for every last scrap of land which might qualify as open country and which would serve no useful purpose.

But that is an entirely different proposition to allowing those charged with the mapping work to miss out large areas. Let us take as an example a large area of land which undoubtedly qualifies as open country but to which there is presently no legal right of access. Some might see Amendment No. 160 as a way to exclude such land from the maps. But that land may well have the potential to serve a very useful recreational purpose should a means of access be created which would allow people to get to it.

To accept this amendment would mean that areas of land to which there is no current access would perhaps never find their way on to maps of open country in the first place. If the mapping process highlights areas which are currently inaccessible but which many people would dearly love the opportunity to walk over, then we would hope that the relevant access authorities would take steps to create a means of access to them.

I turn now to Amendments Nos. 159 and 165. We appreciate that some areas of open countryside can present dangers to the public, but in many areas the risk has coexisted with significant public use over a long time. Such hazards can provide much of the appeal of open countryside. Our approach remains that users must continue to bear primary responsibility for their own safety. The onus would be directly on members of the public to keep themselves out of danger. That principle is reinforced by the exclusion of occupiers' liability for hazards arising from natural features of the landscape.

The noble Lord, Lord Luke, raised the issue of mines. Under the provisions of the Bill, a direction can, if necessary, be made excluding from access the land where those mines are located. If the mine is inaccessible from the highway or a place of public resort and if there is no protective device or if the device is not properly maintained, those issues will be taken into account.

Clause 23 of the Bill enables the countryside body or national park authority to direct access to be restricted or excluded completely where it is believed that there may be a danger to the public. The countryside bodies will be required to map all land which is open countryside or registered common land. Whether the land should be closed or access restricted should be assessed separately--and this is a very important point

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in response to the point raised by the noble Lord, Lord Luke--under the appropriate provision, and will be subject to review every five years.

We do not believe that these amendments would be a helpful addition to the Bill. We see no reason why substantial areas of potential open country should be excluded from the maps. The Bill is intended to give access to all such areas unless they fall for the time being within an excepted category or are subject to an exclusion under Chapter II. Therefore, I hope that the noble Lord will feel able to withdraw the amendment.


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