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(c) on the person who served the notice under subsection (1) above, a notice containing the name and address of each person on whom notice is served under paragraph (b) above and stating what, if any, action the authority propose to take in relation to the obstruction.").
Page 38, line 1, leave out from ("of") to ("may") in line 3 and insert ("this section the persons for the time being responsible for an obstruction include the owner and any other person who for the time being--


(a) has possession or control of it, or
(b)")
Page 38, leave out lines 22 to 31 and insert ("apply to a magistrates' court in accordance with section 130C below for an order under this section.").

On Question, amendments agreed to.

[Amendment No. 431 not moved.]

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Lord McIntosh of Haringey moved Amendment No. 432:


    Page 38, line 35, at end insert--


("( ) An order under this section shall not take effect--
(a) until the end of the period of twenty-one days from the day on which the order is made; or
(b) if an appeal is brought in respect of the order within that period (whether by way of appeal to the Crown Court or by way of case stated for the opinion of the High Court), until the final determination or withdrawal of the appeal.").

On Question, amendment agreed to.

Lord Luke moved Amendment No. 433:


    Page 38, line 36, leave out ("subsection (5)") and insert ("subsections (5) and (5A)").

The noble Lord said: In moving Amendment No. 433, I shall speak also to Amendment No. 437. These are consequential amendments.

Clause 59 provides important new powers to tackle obstructions on rights of way. However, there is a risk that the clause could give rise to contention and undermine attempts to secure a complete and accurate definitive map. That is because the clause provides that the new powers can be exercised in relation to "any" public footpath or bridleway, whether or not such ways are shown on the definitive map. Thus someone could seek to secure the removal of an obstruction over a path whose status was disputed without also needing to clarify the path's status by seeking a definitive map modification order. Clause 59 would seem to provide a way of asserting rights by the back door.

If an authority acted on an application in relation to a way not shown on the definitive map, it would be accepting that the path sustained public rights which may well be disputed by the owner or other local people. If the authority did not subsequently make a definitive map modification order to add the path to the definitive map, contention over the status of the path could continue indefinitely.

An approach consistent with better regulation would be to clarify the status of paths before taking action to remove obstructions from them. The amendments would tackle the problem by giving the owner or occupier, in addition to the highways authority, a right to appear in the magistrates' court to dispute the grant of an order requiring an obstruction to be removed where the owner or occupier had evidence that called into serious question whether the route obstructed was indeed a public right of way. I beg to move.

Lord Bridges: I should like to raise a related point on this clause. Blockages to rights of way are not only caused by obstruction. For example, they may be caused by the removal of a plank across a dyke which makes it impossible to use that right of way. Some

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further addition is therefore needed to the clause in order to cover that difficulty. Perhaps the Minister will be able to give us an assurance on that point.

Lord McIntosh of Haringey: Amendment No. 437 is the substantive amendment in this group. It would widen the effect of the government amendments to which I have just spoken which relate to the right of third parties to appear before a court. A court may not make an order if it is satisfied by the local highways authority that, among other things, there is no serious dispute as to the existence of a highway of the kind to which Clause 59 applies. The government amendments provide that a person who is responsible for an obstruction would also have a right to be heard on the matter by the court and prevent an order from being made if he can satisfy the court on the existence of a highway.

The term "person responsible", as amended by the government amendments, would cover the owner of the obstruction as well as any other person who has possession or control of it or who might be required to remove it. For practical purposes that is often likely to cover a landowner. For example, the provisions under Section 54 of the Highways Act 1980 relating to overhanging vegetation allow for a notice to be served on the owner of the vegetation concerned or the occupier of the land where it is grown.

An obstruction of the highway has been defined as,


    "something which permanently or temporarily removes the whole or part of a highway from public use altogether",

as per Lord Evershed in Trevett v Lee 1955. A few examples of obstructions include a bull in a field, the construction of a house over a footpath, the display of goods by shopkeepers, meetings, processions and picketing, parked cars and overgrown vegetation. I do not want to make the law on my feet but it seems to me that,


    "permanently or temporarily removes the whole or part of a highway from public use",

would include a plank over a stream or a dyke. If I am wrong about that I shall write to the noble Lord and put a copy in the Library so that I am not accused of making law on my feet.

The principal reason why the Government introduced amendments giving such people a right to be heard by the court is that the obstruction could be their private property. For example, if the obstruction was a lawful one but that had not been drawn to the attention of the court, then a person could have his property removed without good reason.

The Government do not believe that it is necessary or desirable to widen the provisions further in this respect. At the end of the day, an order made by a magistrates' court could not have the effect of creating a highway where one does not exist. It is not at all clear why landowners should have a specific right to be heard in this instance. There never has been any suggestion that landowners should have a right to appear in every set of proceedings in which there is a question of whether or not a highway exists--for example, under Section 137 of the 1980 Act.

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We believe that Clause 59, with the addition of the government amendments, is sufficiently well balanced to provide a workable means of encouraging local highway authorities to take action to prevent, as far as possible, the rights of way in their areas from being obstructed.

I am sorry that there are such extensive amendments to Clause 59. But we supplied to the Opposition Front Benches a copy of the Bill as amended by the government amendments, which I hope makes it clear what they mean. On that basis, I hope that the noble Lord, Lord Luke, will not press his amendment.

Lord Luke: I am grateful to the Minister for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 434:


    Page 38, line 39, at end insert ("or, in a case falling within subsection (4)(a)(ii) of that section, is one to which that section would apply but for the obstruction having become used for human habitation since service of the notice relating to it under subsection (1) of that section,").

On Question, amendment agreed to.

Baroness Scott of Needham Market moved Amendment No. 435:


    Page 38, line 47, at end insert ("(an entry in the definitive map and statement of a way specified in subsection (2)(b) of that section being conclusive as to its status for the purposes of this section)").

The noble Baroness said: Amendment No. 435 relates to the question of the courts making an order to clear an obstruction under Clause 59 of this Bill.

This amendment is in part designed to test the Government's thinking on an issue which over the past few days the Committee has highlighted in a number of different respects; that is, the extent to which the definitive map can truly be regarded as "definitive" and its conclusiveness in relation to landowners and members of the public. The amendment also seeks to ensure that no one can use a challenge to the definitive map as a justification for obstruction.

I can understand how the situation may arise when someone feels justified in obstructing a route which is not on the definitive map and that a court might subsequently use the "seriously disputed" provision as a reason to defer taking action on the obstruction. But the position should be quite different where the obstructed route is on the definitive map. It will have arrived there after a lengthy process, which often costs a good deal of public and private money. For someone to obstruct that route and justify it by saying that they dispute the status of the route is quite wrong.

It has become evident over the past few days that we should be seeking to find ways to strengthen the integrity of the definitive map; it is at the heart of a number of issues including, for example, the Grimsell Lane case. When we dealt with Part I of the Bill, Members of the Committee on all sides of the Chamber made great play of the fact that there should

11 Oct 2000 : Column 403

be clarity in the signing and mapping of new access areas. But that concern should apply to public rights of way.

The defence of a right of way being "seriously disputed" is to be resisted for the reason I have already given but also because it is a curiously subjective term to be found on the face of a Bill. How is "serious" to be defined and by whom? I hope that between now and Report stage the Government will give thought to ways in which the definitive map can be strengthened and preserved. I beg to move.

7.30 p.m.

Lord McIntosh of Haringey: I fully support the motives behind the amendment. It relates to the provisions in Clause 59 that the courts should not make an order if there is a serious dispute as to whether a way is a highway of the kind to which Clause 59 applies. However, I hope that I can persuade the noble Baroness, Lady Scott, that the amendment is unnecessary.

Where a highway is shown in a definitive map as a restricted byway or a byway open to all traffic, that is conclusive evidence that the way in question is a highway. It is a straightforward question of fact whether a way is shown as a restricted byway or as a byway open to all traffic. In such circumstances, there could be little prospect of a serious dispute--serious as opposed to frivolous, trivial or vexatious--over whether a way fell within subsection (2)(b) and so it seems that Amendment No. 435 is unnecessary.


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