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Lord Glentoran moved Amendment No. 196A:

After Clause 11, insert the following new clause--


(" .--(1) If any person having an interest in any land wishes to ascertain whether that land is excepted land he may make an application for that purpose to the appropriate countryside body specifying the land.
(2) If the appropriate countryside body considers that the land, or part of it, is neither open country, registered common land, nor is dedicated for the purposes of this Part under section 16, the body shall make a declaration to that effect.
(3) Subject to subsection (2), if, on an application under this section, the appropriate countryside body consider that the land was excepted land at the time of the application, the body shall issue a certificate to that effect.
(4) Subject to subsection (2), if the appropriate countryside body consider that part of the land the subject of the application was excepted land at the time of the application, they shall issue a certificate in respect of that part.
(5) A certificate under this section shall--
(a) specify the land to which it relates,
(b) give reasons for determining that the land is excepted land,
(c) specify the date of the application for the certificate.
(6) It shall be conclusively presumed that land which is the subject of a certificate under this section was excepted land on the date of the application for the certificate.
(7) Regulations may make provision supplementing the provisions of this section.").

The noble Lord said: Amendments Nos. 196A and 196B are set out in the Marshalled List. The mapping programme shows commons and open countryside, but it does not show excepted land. That could lead to all sorts of difficulties of definition. On the ground, the boundary between access land and excepted land may be unclear, not to say obscure. Readers of maps may not be good at interpreting the various features shown on the map. As a result they may stray on to excepted land, where they may encounter unexpected dangers, such as a bull or a covered reservoir. Moreover, if a farmer puts up a notice on access land that he honestly but mistakenly believes to be excepted land, he will be guilty of an offence.

For the benefit of all sides, we should require maps to show the status of all land, both access and excepted. That would clarify boundaries, lead to fewer errors and give greater safety to the public. If the Government are not prepared to accept that, there should be provision to permit those with an interest in certain land to apply for a certificate that states clearly and unambiguously that it is excepted land. That will be for the benefit of all parties--landowners and those seeking to exercise their right to walk across access land.

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The amendment is worded to ensure that the appropriate body does not have to consider whether the land is excepted land. If it considered that the land was plainly not open country, registered common land or Section 16 dedicated land--in other words, the wheat-growing areas of East Anglia, which are so obviously neither moor, mountain, heath or down--the appropriate body would merely issue a statement to that effect. That is to ensure that the application system does not get clogged up with anxious landowners seeking certificates stating that their land is excepted.

Of course, if the status of the land changes, such a statement or certificate may be revoked. However, it is more likely that landowners will ensure that their land does not revert to heath or down.

Yet again, we are pleading for absolute clarity and the utmost professionalism and ease of understanding of the maps that will be produced. I beg to move.

Lord Whitty: I understand where the noble Lord is coming from, but we do not think that the amendment is necessary. It would create a new procedure. In our view the features that are defined as excepted land are, for the most part, readily identifiable. We are talking about land that would otherwise be access land according to the broad definition. We are talking not about the wheat fields of East Anglia, but about land that would otherwise be within moors or heaths, but which, primarily because of its use or its features, is excepted according to the list in Schedule 1, which has been kept reasonably short.

There is no special provision for the resolution of disputes, primarily because the features involved are so readily identifiable by landowners and users. In the majority of cases, there is no difficulty in identifying a garden, a racecourse, a railway or a golf course. As we have said in previous debates, land that has been ploughed or drilled in the past year will also be reasonably identifiable.

The excepted status of land may also vary depending on the use made of it; for example, one exception is animal pens when they are in use, which obviously can vary from month to month and even from week to week. As I said, cultivated land is excepted only for 12 months. Therefore, we see no need to set in place a complex procedure for certification of the status of excepted land. It will be readily apparent. Even if it were certified, the status may change quite rapidly from time to time. Therefore, a certificate would not be a permanent indication of the status of the land.

Nevertheless, despite the fact that the vast majority of these matters will be readily identifiable and agreed, ultimately any dispute can be resolved through the courts. For the reasons which my noble friend Lord McIntosh spelt out at an earlier stage, we do not believe that that is an appropriate task for the Agricultural Lands Tribunal, which would be the procedure for resolving disputes, together with the procedures set out by the noble Lord. Therefore, we do not believe that these amendments are necessary. The

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exemptions on the list are pretty well identifiable. The number of disputes would be relatively small and, it is hoped, easily resolvable by negotiation. The final backstop would be the courts but they would be rarely used. I hope that on that basis the noble Lord is reassured.

6.30 a.m.

Lord Glentoran: I thank the Minister for that response. I do not know whether it will be possible to do so before Report stage, but it would be helpful if we could be given a clearer picture of how the maps are put together. I do not see that a problem exists in showing excepted land on the map. If the map of an area shows access land, excepted land and so on, we hope that it will show access points to excepted land, to access land and the various other items that we would like to see on it.

I believe that it would be helpful and would give us confidence if before Report stage we could be given an idea as to how the maps will grow and take shape and of what will be available on them to both landowners and ramblers. I assume that the maps will be of the type that we would use to go on cross-country walks in strange areas or areas that are new to us and where we need maps and compasses. I should be interested to know how, in the light of the Bill, the Ordnance Survey map will be enhanced to show all the items that we need. I believe that when we have some understanding of and confidence in the structure of the map we shall be less concerned about many matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 196B not moved.]

Clause 12 agreed to.

Clause 13 [Occupiers' liability]:

Lord Whitty moved Amendment No. 197:

Page 8, line 6, leave out ("("the 2000 Act")").

The noble Lord said: In moving Amendment No. 197, I wish to refer also to Amendment No. 306. These amendments correct drafting errors in consequence of amendments made in another place where the corrections were not fed through to the rest of the text. They have no substantive effect. Amendment No. 197 removes reference to "the 2000 Act" as there is now no further reference to the Bill in that provision. Amendment No. 306 substitutes reference to "definition" for "sub-paragraph" in the definition of livestock in Clause 41(1). That had previously been overlooked. I beg to move.

On Question, amendment agreed to.

Baroness Byford moved Amendment No. 198:

Page 8, line 17, leave out ("natural").

The noble Baroness said: In moving Amendment No. 198, I shall speak also to Amendments Nos. 200A and 202. Amendment No. 199 is also in this grouping and I expect that my noble friend the Duke of Montrose will speak to his amendment. The noble Viscount, Lord Bledisloe, is not in his place so I expect that his amendment will not be moved.

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We come now to deal with some very important issues. I know that we raised them on Second Reading with the noble Lord, Lord Whitty. I refer to the whole question of the occupier's liability and liability to be excluded in relation to any long-standing structure.

The Bill currently removes the liability in relation to natural features, specifically mentioning plants, shrubs or trees. However, it does not refer to non-natural features. Indeed, we discussed that earlier. These amendments tackle that issue, broadening the occupier's protection from liability to entrants by recognising that liability should not be attached to the features which have been a long-standing part of the working landscape.

It should be stressed that the amendment would not remove liability in relation to the activities of the owners or occupiers of access land, nor could an occupier disregard the safety of entrants with regard to any hazard associated with a feature created after the right of access had been granted.

The amendment seeks to remove as much ambiguity as possible. The approach of removing the arbitrary division between natural and man-made features would lead to less litigation, assist effective land management and provide the need for risk assessment and hazard reduction on the access land.

Statute and case law show that the owner should not be made liable for the state of a premise where access is of right; for example, where he cannot exclude the entrant. I recommend to the Committee the example to be found in Section 1(7) of the Occupiers' Liability Act 1984 in which the highways were excluded from the ambit of the Act.

Unless the Minister tells me otherwise, "natural features" is not a recognised term and there would be difficulties for the occupier, the public and, ultimately, for the courts in deciding what is or is not natural. For example, lakes can be natural or they can be man made. They may have been in existence for many generations. When does an artificial lake become a natural lake?

Further, why should the liability regime be different? The fact is that much of the natural landscape as we know it today is non-natural and with man-made features which have been built up over many centuries.

That is now the make-up and look of the countryside which the public enjoy to which we refer as having "natural features". The effect of the present law as drafted is that from day one of the new right of access being granted, the occupier will have to undertake risk assessment and deal with potential hazards that could be argued to be non-natural.

Further, it is really the intention that all obviously man-made structures, such as dry-stone walls, should have to be assessed for their safety or removal. That will be the effect of the present proposal. In the other place, the Minister stated in Committee that there are provisions to close where, exceptionally, man-made features pose a threat to public safety. It would also be

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reasonable for a landowner or occupier to seek closure if he would face unacceptable costs or could not provide for adequate protection of the public. The Minister would expect the closure to be granted. The Minister could refer also to the claims against the National Trust or the Forestry Commission, arguing that their "low" level of claims indicates that the problems are small. However, full account should also be taken of the immense investment made by such bodies in making their land safe so that claims do not occur. Unfortunately, most owners and occupiers do not have those resources. In times that are still difficult in farming, noble Lords will understand when I say that I cannot see them having available to them the resources to make land safe that will be available to trusts and the commission.

Amendment No. 200A deals with the removal of liability for injury caused by livestock on access land. The Bill as drafted amends the Occupiers' Liability Act 1984 to the effect that the occupier of the land owes no duty to anyone on access land in respect of a risk resulting from the existence of any natural features of landscape. The Bill goes on to state that,

    "any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape".

It is astonishing to me that livestock are not mentioned. Man has been domesticating, tending and breeding livestock for thousands of years, but the fact remains that no matter how domesticated that livestock may be, certain elements remain unpredictable and sometimes positively dangerous.

Fields are not always flat, and as one cannot always see over the brow of a hill, livestock can pose quite a threat to the public who will have access to the land. It is possible to enter a field where the livestock cannot be seen. That can be dangerous. The most obvious examples are boars, rams and even billy goats. The noble Countess, Lady Mar, is not in her place but she knows about goats. Over the years such animals have injured or killed people. Young cattle when startled can become excited by the presence of strangers and when the strangers have dogs with them, that excitement can lead to a stampede.

My family had an elderly dog which upset the cattle in our field and she was knocked down, which was not a happy experience. Last year there was a tragic case of a lady walking her dogs across fields in Dorset. A similar situation occurred and she was trampled and killed.

This amendment removes the liability from occupiers for injury caused by livestock on access land. It puts into effect what is stated in the paper, Land Management Implications of Enhanced Access to the Open Countryside, which was prepared by the Royal Institute of Chartered Surveyors. Paragraph 3.1.5 says:

    "Liability for injury caused by cattle is now a further issue. It should not apply to walkers across open country otherwise there will be difficulty in managing livestock in the hills. Any further decline in cattle grazing will conflict with conservation goals which are seeking to encourage suckler herds back into the hills to achieve appropriate management".

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Amendment No. 201 is self-explanatory. Amendment No. 202 inserts a long list which includes,

    "any plant, shrub or tree, of whatever origin, and any drain, ditch, wall, fence, hedge, gate, stile, footbridge, building (whether operational, disused or abandoned), shooting butt, reservoir, dam, dewpond, mineshaft, path surface (where a path has been provided with a surface) or ancient monument".

That is a long list. But, as we debated at Second Reading and earlier when talking about the purpose clause, it is difficult to define what should be included in the list if we rule "natural" out as being the accepted sense of natural.

Clause 13 relates to occupiers' liability and the liability to be excluded in relation to a list of non-natural features. The Bill currently removes liability in relation to natural features, especially plants, shrubs or trees. But it does not relate to any non-natural features. The amendments tackle that issue, broadening the occupiers' protection from liability to entrants by recognising that liability should not be attached to features that have long been part of the working landscape.

The amendments provide a non-exclusive list of man-made features which could unfairly be subject to occupiers' liability despite the length of time they have been an integral part of the landscape. No duty would be owed in relation to any features of the landscape, whether natural or man-made, or whether non-natural or man-made where features other than natural features would be included in those features listed, such as drains, ditches and walls. The amendment would not remove liability in relation to the activities of owners or occupiers of access land.

The amendments seek to remove as much ambiguity as possible. The approach of removing the arbitrary division between natural and man-made features and of listing features exempt from the 1984 Act would lead to less litigation, assist effective land management and ameliorate the need for risk assessments and hazard reduction on access land. Further, the amendments would encourage occupiers to assist access to the land by, for example, the erection of stiles without fearing that they would be incurring a greater liability burden.

Statute and case law indicate that owners should not be made liable for the state of the premises where access is as of right; for example, where they cannot exclude the entrants. Members of the Committee should refer to Section 1(7) in the Occupiers' Liability Act 1984, under which highways are excluded from the ambit of the Act.

"Natural features" is not a recognised term and there will be difficulties for the occupier, the public and, ultimately, for the courts in deciding what is and what is not natural. For example, lakes can be natural or man-made and have been in existence for generations. When does the artificial lake become natural? Further, why should the liability regime be different? Much of the "natural" landscape of the countryside is non-natural and many man-made features make up the look of the countryside.

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Members of the Committee will ascertain from the list I outlined and the detail into which I have gone that I am anxious that the rights and liabilities of owners and occupiers should be clearly laid down in the law. I fear that if we do not do that, the courts which have to interpret it will not thank us for not clarifying what is and what is not natural or man-made. I beg to move.

6.45 p.m.

Lord Whitty: It may be appropriate for me to indicate, before we go into general debate, where the Government stand on this matter. Without resiling at all from our central point on this, the issue of occupiers' liability has been greatly exaggerated as a problem by those who wish to limit the impact of this Bill or even oppose it. Nevertheless, we accept that the exclusions that we have so far provided need to be widened. Although I do not accept everything that the noble Baroness says in relation to natural features, there are other features where similar arguments apply.

I regret to say that of all the amendments in the group to which the noble Baroness spoke with such clarity, the one which is closest to the amendment I propose to bring forward is one she has not mentioned; that is, that in the name of the noble Viscount, Lord Bledisloe, who is not in his seat. That amendment refers to buildings, which is wrong because buildings are already excluded. It also refers to walls, hedges, gates and so forth; in other words, boundary features in the broadest sense.

We intend to bring forward an amendment which would exempt people climbing over or going through boundary features from occupier liability. That would not exclude liability if a wall fell on someone without him touching it, but it would exclude liability if someone were going through a boundary feature.

That would deal with many of the points raised by the noble Baroness, although it does not say where the dividing line is drawn between natural and non-natural. Non-natural is included in the exemption and we might think of better tightening up between now and the Report stage.

I have points to make on the other amendments, but I will leave them until the end of the debate.

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