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Lord McIntosh of Haringey: Perhaps we can have a meeting between now and Report. Will the noble Baronesses, Lady Scott and Lady Byford, talk to us about it? We acknowledge the problem; we have just not found the ideal solution to it.

I come to the point made by the noble Baroness, Lady Scott. If the intention is to extinguish unused vehicular rights of way, perhaps Section 116 could provide a much better way to do that on a case-by-case basis. Shall we discuss the issue later, rather than pursue it now?

Earl Peel: Just before the noble Lord sits down, will he answer a simple question? He said that only byways open to all traffic that were suitable for walkers would appear on the definitive map. What will happen when they become unsuitable for walkers? Will they simply be removed?

10 p.m.

Lord McIntosh of Haringey: The purpose of definitive maps is to record only those byways which are particularly suitable for walkers and horse riders. If a change took place and they were no longer particularly suitable for walkers and horse riders, I suppose that they would have to be removed from the definitive map. I cannot see quite how that would happen.

Earl Peel: Perhaps it would be to do with the discussion we had earlier about vehicles.

Lord McIntosh of Haringey: Even if they were not in good repair as a result of use by four-wheel drives, that would not take them off. The answer is that they are left on the map unless they are changed by a legal event rather than by a physical one.

Baroness Byford: I am grateful to the Minister for suggesting that we meet. It is a huge problem. The noble Lord said that the amendment is a brave attempt. I realise that it is a brave attempt. Indeed, considering the time of night, I think it is an even braver attempt. When the noble Lord said that this might well apply to highways and all trunk roads, I thought that I might be solving at a stroke the problem of his noble friend Ken Livingstone and many other problems in towns and cities.

Lord McIntosh of Haringey: Ken Livingstone is neither noble nor my friend.

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Baroness Byford: The former is correct. I do not quite know how that will be read in Hansard. My intention was not to have a broad-brush provision. I shall look at the Road Traffic Regulation Act. That is probably the right way to go about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Bridleway rights over ways shown as bridleways]:

Lord McIntosh of Haringey moved Amendment No. 361:


    Page 32, leave out lines 4 and 5 and insert--


("(a) was immediately before 1st January 1949 either a footpath or a bridleway, and
(b) is, throughout the period beginning with the commencement of this section and ending with the cut-off date,").

The noble Lord said: In moving Amendment No. 361, I shall speak also to Amendment No. 362. These amendments relate to Clause 51, which 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. This is something of a quid pro quo for the extinguishment provisions in Clause 49.

Amendment No. 361 clarifies the intention that, to be consistent with Clause 49, Clause 51 should apply only to those highways which were footpaths or bridleways immediately before 1st January 1949. Amendment No. 362 ensures that any existing private rights of way over the way in question shall be protected. This is also consistent with the approach taken in Clause 46(1). I beg to move.

Lord Glentoran: Is the noble Lord speaking to Amendment No. 363? I do not see it in the groupings list.

The Deputy Chairman of Committees (Lord Skelmersdale): If it will help the Committee, Amendment No. 363 was spoken to with Amendment No. 311.

Lord McIntosh of Haringey: I am grateful to the Deputy Chairman for his totally objective and professional assistance in this matter.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 362 and 363:


    Page 32, line 15, at end insert--


("( ) Any right of way over a way by virtue of subsection (1) is subject to any condition or limitation to which the public right of way on foot over that way was subject on the cut-off date.").

Page 32, line 28, leave out from ("52") to end of line 30.

The noble Lord said: Amendment No. 362 was spoken to with Amendment No. 361 and Amendment No. 363 with Amendment No. 311. I beg to move.

On Question, amendments agreed to.

Clause 51, as amended, agreed to.

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Clause 52 [Cut-off date for extinguishment etc.]:

Baroness Byford moved Amendment No. 364:


    Page 32, line 32, leave out ("2026") and insert ("2016").

The noble Baroness said: The amendment deals with the bringing forward by 10 years of the cut-off date for the definitive map. At present, owners or potential purchasers of property cannot be certain whether their land is crossed by rights of way that are yet not shown on the definitive map. Routes not used in living memory, which may be of little or no value for recreation, can be claimed. When those claims are made, often the historical or user evidence is unclear. Neither the landowners, the user, nor the highway authorities may know the status of the route, or indeed if it carries any public rights at all. Conflict can ensue.

The benefit of a cut-off point for the use of historical or user data is that this uncertainty and source of conflict for all parties would be removed. User groups are correct in arguing that a source of public rights of way will be lost, but the benefit to the wider public of the ways claimed is often minimal. Furthermore, historically, public routes have come into being to get from point A to point B, not for public recreation. Where there is a need, using the modern criteria, for a right of way, this can often be created by agreement or by order along the most suitable route for users as well as for landowners.

The inclusion of a cut-off date for definitive maps was a welcome improvement made to the Bill at Report stage in the House of Commons, although any date which prevents claims relating to the alleged historical routes--which are often unsuitable today--would also be welcomed. A date of 20 to 30 years in the future will be seen as being of limited benefit to landowners and occupiers today--that date is a long way off. Moreover, the proposed cut-off date does not reflect the Government's original proposals contained in their first consultation paper. There it was agreed that an accurate legal record of rights of way was important. However, it argued,


    "The longer the time taken to complete the historical record, the more the uncertainty for user and landowner and the fewer the resources for creating new and alternative rights of way".

Originally a term of 10 years was suggested as the period during which all outstanding claims made solely on the basis of historical evidence should be made. Providing in the Bill a period of 25 years more than doubles that initial response and does little to reduce the uncertainty which the Government wish to remove. I suggest that we need to solve the contentious issues which surround the existence and status of public rights of way. This can be done only if the Government stand by their initial proposal for a shorter period rather than allowing this issue to drift on for another quarter of a century.

The amendment would provide a cut-off date 15 years from the commencement of the Bill. It allows an additional five years beyond the Government's original suggestion to research and submit modification orders, thereby responding to the concerns expressed by many organisations representing the users of rights of way. However, it is

9 Oct 2000 : Column 122

still short enough to demonstrate that the Government are determined to bring forward the date when the definitive maps can become truly definitive. I beg to move.

Baroness Scott of Needham Market: I should say at this point that we on these Benches do not feel that we can support this proposal. We have grave concerns about the introduction of a cut-off date of any kind. It is important to understand the nature of public rights of way and how new rights of way come into being.

If we had in place a properly funded and systematic research programme, then perhaps we could have a little more sympathy with the notion of a cut-off date. However, that is not the case. The fact that any rights of way exist at all appears to rely on the work undertaken by voluntary user groups of the kind we discussed earlier. In some places they are well established and therefore their areas are well covered by rights of way. But in other areas there are only very few such people and groups. Because of that, historic routes are being lost. Under the provisions of a cut-off date, more would be lost. Indeed, if that date is brought forward, those rights of way will be lost at an even faster rate.

Perhaps one could take the view that it does not matter if an old route is lost. People do not walk them as much any more. Perhaps they were last used extensively 300 years ago. However, we do not take that view as regards old buildings; we treasure and nurture them. Ancient routes seem to be regarded differently, but I contest that they do matter. The route from one village to the next walked by local people for hundreds of years forms a part of the landscape. We would like to walk it in the way that people have done for several hundred years.

There is a grave danger that with any kind of cut-off provision these routes will be lost. If, as the amendment proposes, the date is brought further forward, even more will be lost. That would be to the detriment not only of the walking public but of the heritage that we leave our children.


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