Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Bridges: I support the amendment. Like my noble friend Lord Northbourne, I believe in the need to extend the public rights of way network and in allowing citizens to express their view on what should be done. It is for the council to decide what to do with the application. To allow a citizen the right to suggest that a new right of way should be created seems to be democratic and the correct thing to do. I hope that the amendment will be accepted.

Baroness Miller of Chilthorne Domer: I thank noble Lords who supported my amendment. I believe that this group of amendments is forward looking and, as the noble Lord said, in future it will be citizens who will make applications. It will not be for the local authority to be judge, jury and promoter of the rights of way network. I understand that perhaps the amendment is somewhat before its time. For that reason, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 Oct 2000 : Column 131

Lord Whitty moved Amendment No. 366:

    Page 61, line 8, at end insert--

("(3) In this section, "agriculture" includes the breeding or keeping of horses."").

The noble Lord said: Amendment No. 366 arises from commitments given in another place to consider an amendment tabled by the Opposition Front Bench. It relates to Section 29 of the Highways Act 1980 which requires councils to have due regard to the needs of agriculture and forestry when making orders creating, diverting or closing rights of way.

The amendment would simply extend the definition to include the keeping or breeding of horses. I beg to move.

On Question, amendment agreed to.

[Amendment No. 367 not moved.]

[Amendment No. 368 had been withdrawn from the Marshalled List.]

Baroness Miller of Chilthorne Domer moved Amendment No. 368A:

    Page 61, line 14, at end insert--

(" . After section 118(2) of the 1980 Act there is inserted--
"(2A) The Secretary of State, or a council, as the case may be, shall not confirm a public path extinguishment order unless he, or as the case may be they, are satisfied that it is expedient to do so having regard to--
(a) the relevant local highway authority's strategic objectives for their local rights of way, as set out in its rights of way improvement plan; or
(b) any other changes to the rights of way in the area, either proposed or having been made within the last five years, and whether these would adversely affect the overall extent of the public rights of way in the area or the use and enjoyment of those rights of way by the public."").

The noble Baroness said: Amendment No. 368A and the other amendments in this group continue the theme of trying to ensure that we do not end up with a diminished network. The purpose of the amendment is to allow an authority or the Secretary of State to take into account the wider impact of any proposed changes when determining a public path order.

It would, for example, allow an application to be rejected if it were contrary to overall improvements set out in a rights of way improvement plan. As the law stands, and as it would if the Bill continues unamended, each application has to be decided on its own merits rather than in the setting of a rights of way improvement plan. We believe that approach to be wrong.

We are concerned that Schedule 6 will result in a diminished network. Our amendment would allow a much wider impact of closures and diversions on the rights of way network to be taken into account. Even a small and relatively unexceptional application could be rejected because of the overall degradation in the quality of the network. I am sure that noble Lords can think of examples where a small application might result in large parts of the network being much less well connected with each other.

9 Oct 2000 : Column 132

In speaking to Amendment No. 368B, I shall speak also to Amendments Nos. 369A, 370, 380A, 380B and 382. These amendments would allow certain categories of landholder--now extended to horse owners--to apply to close or divert rights of way. Consequently, local authorities are likely to fast-track those changes to the network because they have to be processed within specific periods of time, whereas creation orders will be given a lower priority, thus reducing an authority's ability to implement rights of way improvement plans. Again, we feel that that could lead to a net loss of both the quantity and the quality of the network.

Finally, Amendment No. 370 deals with the replacement of the word "four" with "twelve" in Schedule 6, and seeks to give local authorities longer in which to process applications. As it stands, the biggest outcome of the Bill will be a total gridlock in the rights of way legal and administrative processes, which are bad already. As the Bill stands, those processes are likely to become more difficult, because the Bill will introduce a firm process for landowners. That does not necessarily mean that the criteria will be satisfied on any path diverted or extinguished, but it will certainly mean that highways authorities have little discretion as to whether or not to process an application in a short timescale and reduced discretion to decline an application.

The likely outcome is that an already over-burdened system will be completely clogged up. Applications to add missing highways to the definitive map will necessarily take much longer and a great deal more research and preparation will be required than in the case of diversions and extinguishments. Therefore they will follow a long way behind and be subject to even more delay. We feel that we already have a cut-off date. Surely local authorities could be allowed 12 months as opposed to four months, especially where we are trying to secure a more consultative process. Four months barely allows time to consult with parish councils, given the cycle of their meetings. This group of amendments seeks to guard against the network being considerably diminished. I beg to move.

Lord Northbourne: I rise again in a sense to support the amendment. However, I have difficulty with the position of the Liberal Democrat Benches as they seem to be saying, "Yes, we want everything we can get. But we are not going to give anything". We must have both give and take if we are to move forward in improving rights of way. If I am mistaken, I apologise to the noble Baroness, Lady Miller. But if the intention is to obtain a fair balance between give and take, I support the amendment.

Baroness Scott of Needham Market: Perhaps I can respond briefly to that remark. From the comments we have made on these Benches this evening, I can understand why the noble Lord, Lord Northbourne, makes those remarks. Our difficulty is when looking at Part II as a whole. A number of proposals, taken individually, erode some of the rights of users, but,

9 Oct 2000 : Column 133

when taken as a whole, those proposals represent a significant erosion of rights and that is what concerns us.

I should perhaps add at this point that we sympathise with landowners. After all, they do not all own huge tracts of land. In terms of rights of way, the term "landowner" may include someone who has a house with a right of way running through the back.

During earlier debates, it struck me that we have a problem with the search process which people undertake when buying houses. Part I searches do not reveal the existence of a public right of way, so many people are in ignorance of the fact that one runs through their property. Many issues which are unrelated to the Bill are related to rights of way and there is an uncertainty for landowners.

I suggest that we ought to consider a cut-off date. Whether that be 10, 15 or 25 years ahead, there will be a significant number of unresolved claims leaving landowners in uncertainty.

11 p.m.

Baroness Byford: I rise to express my slight concern about Amendments Nos. 368B and 369A. While we may agree that any person with an interest in the land should be able to apply for an extinguishment order, the proposal appears to go way beyond those with a legitimate local interest in the land. It could run the risk of producing continuous vexatious applications from those without direct interest in the local land about which they are objecting. Therefore, we have reservations about the amendments and wait with interest to hear what the Minister has to say.

Lord McIntosh of Haringey: One thing the Minister must say relates to time limits. The noble Baroness, Lady Byford, mentioned her slight concern but her amendments, which have been ungrouped and must be considered separately, go entirely in the opposite direction from those tabled by Liberal Democrat Members. I wanted to talk to them altogether but they are not reconcilable.

I shall begin by talking to Amendments Nos. 368A and 380A, because I understand the motives behind them. They relate to the power to confirm orders under Sections 118 and 119 of the Highways Act 1980 closing or diverting footpaths and bridleways. In the first instance, the order would have to be considered in the light of the strategies in the relevant rights of way improvement plan prepared under Clause 56 of the Bill.

The second element of the amendment would set a more difficult test for a confirming authority to assess and it is difficult to see how it would work in practice. First, a detailed balance sheet would have to be kept of all the changes made to the rights of way in a particular area and then the authority would have to evaluate the effect of all those changes and how that might affect an individual proposal.

This could be an impossible task as the decision would have to take into account not only rights of way which could be many miles away from the footpath or

9 Oct 2000 : Column 134

bridleway in question--for instance, at the opposite end of a large county--but also any applications for orders in the pipeline and the effects of the previous five years'-worth of public path orders in any area, including creations, diversions and extinguishments for planning and development purposes.

However, I acknowledge the fact that the amendments seek to ensure that decisions on individual changes to rights of way are made within the context of the wider local network of which each right of way is a part. The Government are not prepared to accept both the amendments, which in our view go too far, but we are prepared to consider the first element which would expressly confirm that the objectives of an authority's plan should be a material consideration in decisions on confirming public path orders. I hope that on that basis the amendment will not be pressed.

I turn to Amendments Nos. 368B, 369A and 380B. I should have liked to talk at the same time to Amendments Nos. 381A and 402B, which are the Liberal Democrat amendments, but the grouping does not allow that. However, I hope that I shall be able to cut short my comments on the later group.

We have already debated Amendment No. 381A, which relates to the issues in these amendments. We have thought very carefully about who should have a right to apply for public path orders. Those who depend on their land for an income need to be able to manage their land productively to gain a reasonable economic return. Generally, the public's use of rights of way should not prevent a landowner from managing his land successfully, but we are aware that circumstances arise in which, for example, the diversion of a path is in the land manager's interests and has no significant adverse effect on the interests of the public. More rarely, there may be instances in which a path is no longer needed by the public and may, therefore, be considered for closure. The proposals in the Bill are meant to be used in just those circumstances, in recognition of reports of the difficulty that some landowners have experienced in obtaining such orders. In such cases, proposals will be considered on their merits. The public will still be able to object to closure and diversion orders and have their views heard by an inspector.

We, therefore, believe that there is a case for making an exception to the general rule that decisions on changes to highway networks, whether footpaths and bridleways or other highways, should be for public authorities to promote. Local authorities will in any case have to consult publicly on their strategic decisions about rights of way during the preparation of the improvement plans required by Clauses 56 and 57, so there will be ample opportunity for members of the public to contribute views on changes to their local rights of way networks in addition to the opportunities which they already have under Schedule 6 to the Highways Act. I hope that on that basis this amendment will not be pressed.

I turn to Amendments Nos. 370 and 382. These amendments relate to the period which must elapse before an applicant for a stopping up or diversion

9 Oct 2000 : Column 135

order can apply for a direction requiring the relevant council to determine the application. The amendment would apply both to applications by land managers for orders under Sections 118 and 119 and by schools for orders made under the new Sections 118B and 119B. I acknowledge that there is a difference between the four-month period for applications for public path orders and the 12-month period which applies to applications made under the Wildlife and Countryside Act 1981 for orders modifying the definitive map. However, the Government believe that four months is an appropriate starting point within which decisions may be arrived at as to whether to make a closure or a diversion order.

I heard the observations of the noble Baroness about consulting parish councils. In some counties there may be problems in consulting district councils. Surely, all of these matters can be done concurrently rather than consecutively. I would have thought that four months was a reasonable period. The issues to be considered are substantially different from the complex task of assessing evidence submitted in support of an application for a definitive map order. In many cases the authority may have to undertake additional research through old archives before it is in a position to decide whether there is sufficient evidence to justify adding a right of way to the map. I do not accept that local authorities will be diverted from their duty to record rights of way on definitive maps by the new provisions in Schedule 6. They should have no reason to claim lack of funds because the Government will provide additional funding for these new responsibilities. I have already given that response in answer to separate questions.

Although we have listened carefully to the arguments, we are not convinced that the four-month period set out in the Bill is unreasonable. I hope that, on the basis of the positive answers that I have been able to give to some of the proposals in this group, the amendments will not be pressed.

Next Section Back to Table of Contents Lords Hansard Home Page