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Lord McIntosh of Haringey: I have a horribly long answer to this amendment and I do not know how to cut it down and still do justice to the argument advanced by the noble Baroness, Lady Scott. Before I reply, perhaps I may respond to her initial challenge: how does the Bill clarify rights?

There are probably 20 or 30 different answers, but the fundamental answer lies in the creation of restricted byway status, which I believe is clear and which subsumes a number of previous categories, none of which was clear or which was dependent on historical status rather than the present status. That is almost a subject for philosophical debate rather than

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the consideration of individual amendments. I believe that the Bill in Part II not only seeks to achieve greater clarity but does in fact achieve it--although I am the first to confess that the wording does not encourage that view.

A number of amendments have been tabled relating to the provisions for setting a cut-off date for the recording of certain rights of way and the extinguishment thereafter of any which are not recorded. What the noble Baroness, Lady Scott, is attempting to do--she calls it "natural justice"--is to provide a quid pro quo for the loss of any rights of way on the cut-off date by preventing any which have been recorded in error from being deleted. I hope I have got that right.

Baroness Scott of Needham Market: I thank the Minister for giving way. What I am trying to establish is that someone who seeks to delete a path by reference to its use before 1949 would have to show beyond doubt that the public were not using it as of right and that there was an error.

Lord McIntosh of Haringey: The purpose here is a change in the onus of the burden of proof. I am not sure that I fully understood that before, and I am not entirely sure that that is what the amendment says.

Of course there is some attraction in the argument that if the public will be unable to submit evidence as to the existence of rights of way after the cut-off date, then there should also be a bar on applications seeking to remove rights of way. I note that Amendment No. 322A would apply only in respect of rights of way shown on a map at the cut-off date so that it would be possible to correct errors which arose after that date. I also note that it would apply to all rights of way, irrespective of when they were created, whereas the extinguishment provisions apply only to unrecorded footpaths and bridleways created before 1st January 1949 and to any unrecorded pre-1949 higher rights over ways which are shown on a map at the cut-off date. The amendment does not say anything about whether the highways can be downgraded or upgraded. The Bill also provides certain exceptions to the extinguishment rule, as the amendment does. The amendment therefore goes much wider than the provisions which it seeks to counterbalance.

We have looked at the general principle behind the amendments and are not unsympathetic to it. However, there are a number of difficulties involved. We must remember that definitive maps do not create highways from scratch: they merely record what exists--whether it is the effect of an express creation, diversion or closure by statute or agreement, or by other means.

Merely preventing the deletion of a right of way that has been recorded in error will not change the status of the land in question. If no highway exists but the map continues to show one, the only consequence will be a map that is wrong. That will not benefit anyone. To avoid that situation, it would be necessary to make express provision for a right of way to be created over

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the land. But, again, the amendment does not provide for that; indeed, even if it did, there would be problems.

A major concern is how one would identify the lines of the newly-created highway on the ground. That could be easily distinguishable from the definitive map and statement. But the scale at which definitive maps are drawn, particularly the old ones, is not always enough to show the line of a right of way so as to be able to relate it to features on the ground with enough accuracy. The maps are certainly not capable of being used to establish the width of a right of way and, therefore, the extent of the land covered by it; nor is the information always shown in the supporting statement. However, if a right of way is created by order, the land is surveyed and plotted on a map, usually on a scale that provides a reasonable indication of its line. To avoid any doubt, orders also contain additional information to assist identification on the ground.

Definitive maps and statements do not always provide the same amount of information. Where a highway exists, if there is a dispute over its position, the parties can always go back to the original documents or evidence on which the highway was recorded and draw upon the various rules that the common law has established. But if errors were made, or if subsequent evidence showed that no highway existed, any previous evidence would be irrelevant--I warned noble Lords that this was a complicated matter!

The Government have taken special care to ensure that the provisions are practical and workable. We have taken expert advice from the Ordnance Survey, which has taken the view that the scale and accuracy of depiction of rights of way on definitive maps, which would be the only basis for creating a highway, creates fundamental problems when trying accurately to re-create the position of a right of way on the ground. In most cases it would not be possible to re-create the position to better than 10 to 15 metres, if one only had the information on a definitive map. Land disputes can arise over far less than that.

Our conclusion is that this would not be a workable provision and we are reluctant to pursue it. However, we have made some provision in the Bill to counter the extinguishment provisions. Clause 51 provides that where a footpath is wrongly shown on a definitive map as a bridleway on commencement of the section and remains wrongly recorded until the cut-off date, bridleway rights shall be created over it. We do not believe the same difficulties arise here because no new highway is being created from scratch. The only issue is what rights exist over it.

Amendment No. 357A, which relates to the cut-off date, seeks to introduce safeguards for footpaths and bridleways created by public use, or deemed dedication. The first element relates specifically to Clause 49, which provides that any footpaths or bridleways that were created before 1st January 1949 and which have not been recorded on a definitive map at the cut-off date, shall be extinguished. It would

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apply to all cases where the period of public use ended after 1st January 1949. However, for the purposes of the cut-off date, it is relevant only to those where the period of use also began before 1st January 1949.

In relation to ways where the period of use began before 1st January 1949 and continued afterwards, then, solely for the purpose of Clause 49, the amendment would provide that the way should be deemed not to have existed before 1st January 1949. That is irrespective of whether public use of the way before that date was sufficient to establish that a right of way existed. So even though a highway did in fact exist before 1949, it would, under the amendment, be deemed not to have existed for the purposes of Clause 49.

The second part of the amendment would widen the basis on which Section 31 of the Highways Act operates. Where the public have used a way for 20 years without interruption (and in the absence of evidence to the contrary), Section 3l provides, broadly speaking, that the way is deemed to have been dedicated as a public right of way. The 20-year period is calculated retrospectively from the date when the use is brought into question. The effect of the second element of Amendment No. 357A would be to enable applications to be made on the basis of Section 31 irrespective of whether there had been a challenge. That would apply to all such applications, including those where the period of use began after 1st January 1949 and to which the cut-off date does not apply.

The first part of the amendment would effectively move the goal posts because it would enable the continued recording after the cut-off date of footpaths and bridleways created by deemed dedication before 1949. The Government believe that having a single date applying to all footpaths and bridleways is an important starting point to defining which ways are subject to the cut-off date provisions and which are not. The key purpose of these provisions is to encourage completion of the historic record of rights of way and to provide reasonable certainty to landowners and to the general public. I say that in the hope that it will avoid further questions from the noble Lord, Lord Elton. Those aims are undermined from the very beginning if we start to qualify the definition of what should be regarded as "historic" for the purposes of these provisions.

However, we accept that Clause 49 needs to be qualified in certain circumstances. Clause 50 sets out certain exceptions; for example, footpaths and bridleways at the side of highways that are carriageways. We do not want to extinguish footpaths which, in practice, serve as pavements. There are several other safeguards, including a power for the Secretary of State or the National Assembly for Wales to make regulations exempting other footpaths and bridleways. All those safeguards are described in the Explanatory Notes to the Bill.

In addition, Clause 50 enables regulations to be made extending the cut-off date for a maximum of five years in areas where the duty to record definitive maps has been in place since the 1949 Act. In other

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areas--for example, those where definitive maps were only first required by the Wildlife and Countryside Act 1981--there is no upper limit to extending the cut-off date. These are predominantly urban areas. There has been concern that many footpaths and bridleways in such areas will not be recorded in time, especially as local authorities in such areas have not had as long to record their rights of way.

It is a difficult task to remove rights of way from the definitive map. One needs to produce new evidence, which was not previously considered by the surveying authority. That evidence must also be cogent, given the conclusive evidential effect where a highway exists. I do not expect the noble Baroness, Lady Scott, to respond to the degree of detail contained in my response. However, when she reads my reply in Hansard, I hope that she will realise that we have provided the right sort of provision for natural justice and that her amendment would go too far.

6.30 p.m.

Baroness Carnegy of Lour: One's hair stands on end at the thought of the amount of work that will have to go into all this. But, at the end of the day, does the Minister think that people who want to walk along footpaths, bridleways and other highways will have more, or less, opportunity to do so?


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