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Baroness Byford: All I can say is: "Shame on you, Sir!" That is totally unacceptable and untrue. The noble Lord and I will enter into great clashes as our debates continue if he wants to take that view. Indeed, it is not even a party political point, and I would not suggest that it is.

Lord Greaves: I am sorry if the noble Baroness did not like what I said. However, it is an accurate reflection of what happened in our area. The local authority put up several green footpath signs. They all mysteriously disappeared; and we all know where they went. In one classic case the landowner actually painted over it with a sign indicating his own premises.

Lord Willoughby de Broke: I agree with my noble friend Lady Byford. I take exception to the remarks made by the noble Lord, Lord Greaves. He may have had an unfortunate experience. Indeed, it may be true that he knows what happened to those signs. That may or may not be the case. I do not know. My own experience is that I put up the signs myself; I do not take them down.

The Earl of Mar and Kellie: It may be worth taking some steam out of the debate by reflecting on my holiday in Brittany this summer; indeed, our debates have become a bit of a travelogue. I noticed that the authorities in Brittany had wisely painted the way marks on to existing features, which seemed to get around all these problems.

Baroness Byford: Perhaps I may finish the remarks that I intended to make before I was so nobly

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interrupted. I issue a challenge to the noble Lord. He can certainly return to this matter at a further stage of our proceedings. If he has facts and figures to show which landowners have been doing this, he ought to put forward such figures to back up his suggestions. I also suggest to him that unfortunately--and this is not something of which I am proud--signs within urban areas, which are nothing to do with landlords, also get defaced. The poor authorities concerned are also having to put that matter right.

My point to the Minister is as follows. If the National Trust can manage to keep its signs intact with not too much difficulty, perhaps there are some lessons to be learnt.

Earl Peel: I should like to return to the very important point made by the noble Baroness, Lady Miller, about the vandalism of such signs. There is no questioning the fact that this does happen on a fairly extensive basis. However, I am not sure that that is necessarily an excuse for local authorities--or, indeed, landowners--not to carry out their statutory responsibilities. It takes us back to an amendment that I moved under Part I of the Bill, which my noble friend Lord Jopling demolished rather effectively. Nevertheless, I believe that the principle of my amendment stills stands; namely, that removing or defacing signs should be an offence under Schedule 2 to the Bill, as well as being a criminal offence. Quite frankly, that is the only way that this very serious problem will be addressed.

Lord Whitty: As with everything else on the subject of rights of way, this is a complex area. I hope that the sensitivities of landlords, landowners and ramblers can be removed from the debate and that we can discuss the detail of the situation. There are problems both as regards the removal of signs and the abuse of signs. The amendment is not in line with what the noble Lord, Willoughby de Broke, seems to be seeking. It could be interpreted as applying to all highways because certain provisions in Part II--in particular Clauses 55 and 60--apply not just to rights of way but also to highways generally. Therefore there is a problem with the drafting of the amendment.

However, even if that is not the intention, the Government do not believe that there is any good reason for making all rights of way maintainable at public expense. The situation is complicated because many footpaths and bridleways are already maintainable at public expense as that was the situation before 1959. The Highways Act 1959 brought about change but any footpath or bridleway created before that time is publicly maintainable unless that liability has subsequently been extinguished. So there is not even a clear-cut dividing point from 1959. A number of byways and bridleways are therefore maintainable at public expense; others are not.

Many rights of way are privately maintainable. To create a liability for the public purse overnight could have significant resource implications for highway authorities. The Government see no reason why a

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person who is liable for maintaining a highway should simply have that burden lifted and have it placed on the taxpayer. After all, the landowner knew of the existence of the right of way when he inherited or acquired the land. The provision for him to maintain the right of way should rest with him.

There are, of course, provisions in the Highways Act which enable someone who is responsible for maintaining a highway to apply to the magistrates' court for that highway to be made publicly maintainable and for their private liability to be extinguished. There is no obvious reason why that should be bypassed by the blanket provision which is proposed.

The part of the amendment which relates to signposting of rights of way also seems unnecessary. Section 27 of the Countryside Act 1968 requires a highway authority to erect signs where a footpath, bridleway or byway leaves a metalled road. Highway authorities are also required to erect signposts along a right of way to assist those unfamiliar with the locality. Landowners' consent must be obtained before a signpost may be erected on their land, but the signposting is the public authority's responsibility. We believe these powers are sufficient to ensure that the public know which rights of way are open to them and which are not.

The issues which have been raised about inadequate signing as compared with other countries need to be addressed. They may well be addressed local authority by local authority in the improvement plan for the right of way network. I do not think that we need to transfer the responsibility or to change the powers in the way that the noble Lord's amendment suggests. I therefore hope that he will not press it.

Lord Willoughby de Broke: Before the noble Lord sits down, is he saying that the present power is adequate and that it does not need to be made a duty? That is what I am trying to get at. We heard earlier from Members on all sides of the Committee that signage in this country can be inadequate. To make this provision a duty rather than a power would be comparatively simple. I do not believe that it is a complicated matter. It would clarify the issue for users, the highway authority and landowners.

Lord Whitty: There is a relevant duty in Section 27(4) of the 1968 Act which requires highway authorities to erect such signs as may in the opinion of the highway authority be required to assist persons who are unfamiliar with the locality. This may not be the absolute requirement that I believe the noble Lord seeks. It may vary in its application from area to area. However, as I say, the relevant duty already exists. To seek to transfer responsibility for maintenance and to alter the balance of duty, albeit marginally, is to go too far. If the noble Lord wishes to pursue the matter, he should separate out the two issues.

Lord Willoughby de Broke: I am most grateful to the Minister for that full reply and for trying to clarify the

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position. I shall return to the matter on Report with an altered amendment. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Selborne moved Amendment No. 442:


    Before Clause 62, insert the following new clause--

EASEMENTS OVER COMMON LAND ETC

(" .--(1) Where a way across a common or village green has been used as of right prior to 3rd November 1979 as a vehicular access to a dwelling-house, the dwelling-house shall be deemed, unless otherwise entitled, to have the benefit of an easement for the passage of mechanically propelled and other vehicles along the way.
(2) Subject to subsections (3) and (4), upon the first occurrence of a relevant event in respect of the dwelling-house, any person who immediately before that event held the benefit of a right created by subsection (1) shall pay a reasonable proportion of the value of the dwelling-house to the owner of the common.
(3) No sum shall be payable under subsection (2) if the use of the way to access the dwelling-house (or a dwelling-house in a similar position) began before 1st December 1930.
(4) Subject to subsection (3), the proportion payable under subsection (2) shall not be greater than 2.5 per cent.
(5) Where an easement is granted by express agreement to create a vehicular right of way across a common or village green to a dwelling-house, the owner of the dwelling-house shall not be liable to pay a sum greater than 5 per cent. of the value of the dwelling-house at the date of the agreement for a way from his property to the nearest convenient highway.
(6) Any dispute as to any sum payable under this section shall be referred by agreement to arbitration or referred to, and determined by, the Lands Tribunal.
(7) If no relevant event has occurred the sum referred to in subsection (2) shall be payable 30 years after the coming into force of this section.
(8) The owner of a dwelling-house may at any time prior to the occurrence of a relevant event make a payment as if it is a payment under subsection (2).
(9) In this section--
"owner", in relation to any land, means any person, other than a mortgagee not in possession, who, whether in his own right or as trustee for another person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;
"relevant event", means--
(a) transfer of the freehold ownership,
(b) creation of a lease for a period greater than 21 years,
(c) if the owner is a company, any change in the ownership of the company.").

The noble Earl said: This amendment seeks to address the problems which have arisen over charges for vehicular access over common land. It is an issue which has caused great consternation to a large number of householders who have driven across commons without hindrance for many years. Some will have driven across them for 70 years or more and have only recently discovered that in all that time they had no legal right to do so. They are now in some, but not all, cases facing unexpected and high charges for access from the common owner.

The problem stems from the Law of Property Act 1925 and from subsequent road traffic Acts. The Law of Property Act 1925 provided for owners of commons to execute a deed of public access to their common

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land for the public to walk on it. In return, the landowner was allowed to restrict vehicles and consequently, of course, the landowner had the right to charge for access. The position was aggravated in one sense by the road traffic Acts from 1930 onwards which made it a criminal offence to drive over common land without the owner's permission.

I am sure that the legislation was not intended to disrupt existing access arrangements. It is clear that the purpose was to prevent people driving across commons--a worthy objective. Many owners behaved thoroughly responsibly--I refer to the National Trust which has already been mentioned in another context--and did precisely what should have been done in 1925 and 1930 and granted rights, licences or entitlements of one kind or another to allow people (presumably for a one-off payment) to have access to their households. That was a perfectly reasonable way to behave. However, in a number of cases the owners of the commons simply said, "We know you drive across the commons. We shall not disrupt the arrangements. Your house may have been there for several hundred years, or at least 50 years, and we shall not disrupt the arrangements", and they did not. The position is further complicated by the fact that no one knows who owns a large number of commons anyway. Therefore if a householder tried to get an entitlement to access to his house in those circumstances he would not get far as there is no one to grant that entitlement.

As I say, the position remained unexceptional for the householders until the 1990s. Partly as a result of the 1993 Court of Appeal case, Hanning v. Top Deck Travel Ltd, it became evident that people who thought that they had a prescriptive right of access to their houses because of long use of such access did not have that right at all for the simple reason that as soon as it became a criminal offence to drive on the common land one could not acquire a prescriptive right as a result of a criminal act. Suddenly people faced charges from owners who woke up to the fact that they had a nice earner on their hands. People who for 70 years or more had failed to charge people for access to their houses realised that they now could and that they could send in the bill 70 years later and there was not a thing the owner of the household could do about it. They were trapped. They found that the prescriptive rights which their professional advisers had told them of did not exist. Presumably the houses had changed hands and the issue was never raised by vendors' solicitors, purchasers' solicitors, mortgage providers or valuers. These people were no doubt remiss. They did not pick up on the point that the prescriptive rights could not exist as a result of road traffic Acts which made such access a criminal offence. As noble Lords will realise, it is a great shock for a number of these householders to find that they are suddenly presented with a bill after 70 years or more. Sometimes the bill for the access roads amounts to up to 10 per cent of the current value of the property.

I do not say that it is a widespread, universal habit; it is not. Only a relatively small minority of owners engage in it. Many owners have acted, and continue to act, in a way which acknowledges that when the law

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was changed to make it a criminal offence to drive on commons the purpose was to stop vehicles driving over the commons but not to stop people getting to their homes. That clarification of the law--if that is what it is--was not regarded as a means suddenly to charge great sums of money. But that is what happened in a number of cases. It is those cases which have caused outrage in certain quarters.

In another place, Sir George Young initiated an adjournment debate on the subject. The case drawn to his attention related to Newtown Common. The owners of the common had never been identified until a recent court case which established, I think to the surprise of the family who had sold the lords of the manor rights, that the ownership of the common went with the lord of the manor. That was complete news until the court determined that to be the case. With the new owner came a complete change of policy. Whereas the previous owners had acquiesced over access to the houses, the new owner started sending letters to each of the houses whose owner had to go over part of the commons to gain access to his house. The letter stated that,


    "under the terms of an amnesty the owners will accept 6 per cent of the open market value of your property provided an agreement is reached before the 15th November 1999".

That figure and date have since been modified, but clearly that was no little shock.

Surrey County Council is seeking considerable sums for access over commons in its ownership as are a number of parish councils even though they acquiesced, apparently quite happily, in allowing vehicular access for so many years.

What seems particularly inequitable is that had these owners behaved in the responsible way that other owners behaved and put access agreements on a proper footing many years ago it would have been much easier to find long-standing residents who could testify to the use of these tracks going back to the early years of the century. Now it is impossible. After 70 years it is no longer possible to establish one's prescriptive rights. It is no good saying, "My house is 200 years old. Here is a track." One cannot prove that the track has not changed.

Failure to send a bill for 70 years is an abuse of the owner's rights. Bills are now being sent for 6 per cent or even 10 per cent to continue to have access to a house. It will be ultimately for a land tribunal to determine whether that is the right figure. But 5 per cent or 6 per cent may well stick in some cases. The owner of the commons stands to gain a windfall from a failure to present a bill 70 years ago.

I am sorry for that lengthy introduction but noble Lords will agree that it is unusual to point out a failure of the law over some 70 years. My amendment seeks to alleviate the financial burden that these householders face so unexpectedly. It makes a differentiation in charge between those who have enjoyed unfettered access for a long time and those who have had access for a short time. It is an important principle. The amendment limits the charge which can be imposed on householders to a percentage of current value. The

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amendment suggests a zero charge for houses built before 1930; 2.5 per cent for houses built between 1930 and 1979; and 5 per cent--some might consider that the going rate--or even higher for houses built since 1979.

The amendment provides also that payment is to be made either at the change of ownership of the house or at the creation of a lease exceeding 21 years or sooner if the householder chooses. If none of those events occurs the payment must be made after 30 years.

The amendment has the effect of removing uncertainty from currently threatened householders who will know the upper limits of their liability. I have no doubt that many will be horrified that they face such a bill but at least they have the certainty of knowing the upper limits of this access charge. I beg to move.

9 p.m.

Lord McIntosh of Haringey: Perhaps it may help the Committee if I respond immediately because we have some positive things to say about the amendment--and that may even curtail debate, God forbid!

The Government have made clear that we have considerable sympathy with the objectives of the amendment. We agree that landowners should not be able to make excessive charges for granting rights of vehicular access across their land when such access has been enjoyed for many years without problems arising.

As the noble Earl made clear in his excellent speech, the situation has arisen because the Law of Property Act 1925 and road traffic Acts since 1930 have made it a criminal offence to drive over common land without the owner's permission. Because it is an offence, prescriptive rights cannot be acquired through long use. This has often been overlooked when properties on or adjacent to commons have been built or sold, with a result that many people have been driving over commons to get to their homes or other property in the mistaken belief that they had a legal right to do so. Their surprise at discovering that this is not the case no doubt turns to bewilderment, or worse, when they are suddenly presented with a large bill which can be as much as 10 per cent of the value of their property should they wish to acquire such a right.

We understand and share the objectives of the noble Earl. However, there are a number of problems with the amendment which means that we cannot accept it. First, it is doubtful that use of the way can be as of right because driving across common land is a criminal offence. Secondly, the amendment does not specify a period of time for which the access had to be used. As drafted, one day's use prior to November 1979 appears to qualify. It may simply be that the word "since" has been omitted from the amendment. I do not make any serious point on that.

Thirdly, the amendment would not give the property owner any option. Provided the conditions were met, the statutory easement would arise and he would have to pay for it, although he could defer payment. Fourthly, it is not reasonable to expect the

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landowner to wait for up to 30 years for compensation for the grant of rights over his land. Finally, the dispute resolution procedures in subsection (6) are inadequate.

We recently announced our intention to table amendments on Report. We have made details of our proposals available to your Lordships, but I shall set them out in summary. We intend to set criteria that have to be met for a statutory right of vehicular access over common and similar land to arise. The underlying principle is that the property owner or his predecessors must have been using the access in such a way and for such a time that had the land not been common land or other land on which driving is prohibited, a prescriptive right of access through long use would have been acquired.

Secondly, we propose to set a limit on the amount of compensation that the property owner has to pay to the landowner. We have been at pains to point out that it would not be right for the property owner to pay nothing to secure an undoubtedly valuable right. We have proposed a maximum compensation of 4 per cent of the value of the property with access or one third of the difference between the values of the property with and without access if that is lower. I believe that that is in line with what the National Trust and Surrey County Council charge. Although we have concluded that 4 per cent is an appropriate maximum, we shall listen to any alternative views.

In the circumstances, I hope that the noble Earl will accept that, subject to any consultation that takes place between now and Report stage, it is better to proceed on that basis than to press the amendment.


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