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Baroness Byford moved Amendment No. 335:

(" . After section 56 of the 1980 Act there is inserted--
"Instance where order is not made.
56A. No order shall be made under the preceding section if the respondent satisfies the court that the fact that the way to be maintained is a highway within section 56(1) above is seriously disputed."").

The noble Baroness said: This amendment concerns the whole question of asserting public rights. Highway authorities are under a duty to maintain highways which are publicly maintainable. This duty therefore also applies to public rights of way. It can be the case, for whatever reason, that local authorities do not adequately carry out their duties, by allowing rights of way to become overgrown or impassable, and in effect obstructing the use of rights of way.

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This duty can be enforced by any member of the public where it is felt that the authorities are not carrying out their obligations under Section 56 of the Highways Act 1980. At present, Section 56 powers are being abused. Applicants are using the procedure to force highway authorities to maintain routes where the public status of that route is at issue. The user might argue that it is a public right of way; the owner might argue that it is merely a private track or permitted estate path.

In effect, the Section 56 procedure is being used to ascertain the status of a path and to side-step the definitive map order procedure, where all the evidence can be examined and the landowner and other interested parties have the standing to be heard. This is a back-door method of asserting public rights. Even if the path is repaired by the authority, it may not subsequently be added to the definitive map, prolonging uncertainty for all. We have just discussed uncertainty on a previous amendment.

The potential for the same problem has been recognised in what will be new Section 130B(4) and (5) of the Highways Act 1980. Sensibly a provision has been included whereby a highway authority is removed from an obligation to remove obstructions if the public status of the way is at issue. In particular, what will be new Section 130B(5)(a) provides that no order shall be made by a highway authority if it satisfies the court that the fact that the obstructed way is a highway is "seriously disputed".

The amendment would apply the same constraint to Section 56 of the 1980 Act, preventing further abuse of the current procedure. Taking this action would provide further strong evidence of the Government's serious aim of securing complete and accurate definitive maps. Consideration should also be given to the merits of applying to Section 56 the parallel constraints provided by new Section 130B(5)(b) and (c). I beg to move.

Lord McIntosh of Haringey: Amendment No. 335 would prevent an order being made under Section 56 of the Highways Act 1980 if the person alleged to be responsible for maintaining the way in question satisfies the court that there is a serious dispute as to whether it is a highway. The noble Baroness, Lady Byford, prayed in aid the provisions in Clause 59 of the Bill--that is, new Section 130B(4) and (5).

The two provisions are substantially different. Clause 59 is concerned with the enforcement of the general duty on highway authorities under Section 130 of the 1980 Act to prevent, as far as possible, the rights of way for which they are responsible from being obstructed. The courts have held that the duty under Section 130 applies only if there is no serious dispute that the particular way is a highway. I refer to R v Lancashire County Council, ex parte Guyer [1980]. That is why Clause 59 prevents the magistrates' court making an order if it is persuaded that there is a serious dispute as to the status of a way. On the other hand, Section 56 provides a means for deciding the issue of

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whether a way is a highway. Under Section 56 such cases go straight to the Crown Court for resolution and the enforcement of the duty to repair is not conditional on there not being a dispute about the status of the way. I am sorry about the double negative but the enforcement is not conditional on there not being a dispute. The amendment would not remove the provision for applications to be made to the Crown Court but would simply prevent the court from doing a job which Section 56 specifically assigns to it.

The noble Baroness, Lady Byford, said that people use Section 56 to bypass definitive map procedures. Definitive maps were not conceived of as the exclusive route to establish the existence or non-existence of a highway. They are not conclusive of what is not shown in them and individuals, for example, are still entitled to apply for a declaration as to the existence of a highway.

Section 56 is different from Clause 59 in a number of ways. Orders made by the court under Section 56 are against whoever has a maintenance responsibility. It could be the highway authority or a private individual. The order is made against whoever is responsible for a highway being out of repair. However, orders under Clause 59 are not made against whoever is responsible. They are made against the highway authority--the purpose being to get the authority to do its job properly and perform its duty.

I hope that the noble Baroness will not press the amendment.

Baroness Byford: I thank the Minister for his response. If repair is needed to a path and the user persuades the highway authority to do that repair, does the noble Lord accept that there is greater force behind the argument to establish that there is a right of way than if the highway authority had not undertaken the work in the first place?

Lord McIntosh of Haringey: I do not think that that is necessarily the case. If repair is undertaken it is more likely that the walker, or whoever, will use the path. If that affects the status of the right of way, indirectly it affects the outcome. But I do not think the fact of the repair being undertaken of itself affects the situation.

Baroness Byford: I thank the Minister for his response. I should like to consider the matter further. I think that there is an inference of undue pressure. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 335A:

    Page 60, line 15, at end insert--

(" . In section 31(6) of the Highways Act 1980 (dedication of way as a highway presumed after public use of 20 years)--
(a) for "a statement indicating" there is substituted "a statutory declaration indicating";
(b) after "been dedicated as highways" there is inserted "and to the effect that he has no intention of dedicating any additional way over the land as a highway";

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(c) for ", in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time--
(i) within six years from the date of the deposit, or
(ii) within six years from the date on which any previous declaration was last lodged under this section, to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are," there is substituted "such a deposit is,".
(d) "or his successors in title" is omitted.
After section 31(6) of the 1980 Act there is inserted--
"(6A) Every surveying authority shall keep, in such a manner as may be prescribed, a register containing such information as may be prescribed with respect to deposits lodged under section 31(6).
(6B) The register shall contain such information as may be prescribed with respect to the manner in which such deposits have been lodged and dealt with.
(6C) Regulations may make provision for a specified part of the register to contain copies of deposits.
(6D) Every register kept under this section shall be available for inspection free of charge at all reasonable hours.
(6E) In this section--
"prescribed" means prescribed by regulations;
"regulations" means regulations made by the Secretary of State by statutory instrument;
and a statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament."").

The noble Baroness said: The amendment deals with dedication. Deemed dedication in relation to public rights of way is where under common law it is presumed that at some time in the past a landowner has dedicated the way to the public, either expressly, the evidence of the dedication since being lost, or impliedly by making no objection to the use of the way by the public. Due to the uncertainty as to what period of time must have lapsed before this dedication can be sufficiently assumed, legislative measures have provided various tests to establish whether or not presumed dedication has taken place. The latest provisions are contained in Section 31 of the Highways Act 1980.

Broadly, the effect of this section is that after 20 years, unless evidence of a contrary intention is apparent, a way will have been deemed to have been dedicated as a public right of way. Section 31(6) enables an owner to show that he or his successors in title did not intend to dedicate any additional way as a highway.

Under subsection (6) it is possible to lodge a map, statement and statutory declaration rebutting any intention to dedicate any future public rights of way. The map identifies all known public rights of way on the specified land. Once lodged, the map, statement and declaration become public documents and available for public inspection.

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The provisions of Section 31(6) are valuable in rebutting presumptions of dedication based on future use--in other words, use after the date of the declaration. Equally, users may be able to provide evidence that a track has been used for 18 years as of right before the date of the first statutory declaration. If they cannot show an additional two years' use before that date they will be unable to claim that a public right of way has been created by deemed statutory dedication under Section 31.

The aim of the amendment is to simplify the process of lodging a map, statement and statutory declaration with the highway authority to rebut deemed dedication. At present, a map, statement and declaration have to be lodged with the authority and a new declaration sworn every six years. The amendment would allow for the statutory declaration alone to contain all the necessary information. Further, instead of a new declaration having to be sworn every six years--even if, as is the norm, there is no change of intention on behalf of the landowner--the amendment allows for the declaration to continue in force until a change in ownership of the land. At present a statutory declaration sworn by a preceding owner has effect on the change of ownership, subject to renewal every six years. The amendment also provides for a register of deposits to be maintained. I beg to move.

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