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Baroness Miller of Chilthorne Domer: My Lords, both amendments seem to be helpful and streamline the process. We welcome them.

On Question, amendment agreed to.

Clause 46 [Provisions supplementary to ss. 44 and 45]:

Lord Whitty moved Amendment No. 153:



("(1A) As from the commencement of that section, any liability, under a special enactment (within the meaning of the Highways Act 1980) or by reason of tenure, enclosure or prescription, to maintain, otherwise than as a highway maintainable at the public expense, a restricted byway to which subsection (1) applies is extinguished.").

On Question, amendment agreed to.

Schedule 5 [Definitive maps and statements and restricted byways]:

Lord Rotherwick moved Amendment No. 154:


    Schedule 5, page 68, line 33, at end insert--


("( ) In subsection (2)(a) for "as appear to them to be" there is substituted "as are".
( ) In subsection (2)(b) for "as appear to them to be" there is substituted "as are".")

The noble Lord said: My Lords, in moving the amendment, I speak to Amendments Nos. 156 to 158, 160, 161, 169, 170 and 171. I have already declared an interest as a landowner and manager.

The proposed change of wording would have the effect of reinforcing the fact that the highways authority's function is to record that a public right of way exists, not to carry out a judicial function and attempt to create a public right of way which does not exist, without compensation to the owner.

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Amendment No. 156 introduces the new Section 53(3)(b). A declaration by a court or other independent tribunal established by law for the purpose would mean that the decision as to whether there is a public right of way in existence would have to be made by a properly constituted, competent and independent tribunal, thereby taking county councillors and the Secretary of State out of the equation. The House of Lords debate on 9th October focused on the possibility of creating a completely independent environmental court that would comply with the Convention on Human Rights in order to adjudicate rights of way disputes. This concept was also advanced by the DETR's report into the working of the planning inspectorate. The determination of rights of way disputes differs considerably from other environmental matters, as it concerns the civil rights and the public rights of citizens, not regulations of planning control.

The proposed new Section 53(3)(b) would ensure that just decisions are reached on the evidence available--not by continuing to show as rights of ways those which are private but which because of the lack of notification of claims under the National Parks and Access to the Countryside Act to the landowner were included on the definitive map and statement without his knowledge. Until relatively recently it was impossible to remove a right of way from the map. Under the Wildlife and Countryside Act the burden of proof that the landowner must satisfy in order to have a right of way expunged from the map is unrealistic and unfair.

The proposed new Section 53(3)(c) is unobjectionable, as it would make it expressly clear that the use by the public of an erroneously recorded right of way does not count or give rise to a presumption of dedication to operate. Clearly, during that period the landowner would be prevented by the operation of the law from blocking the right of way. It would therefore be unjust to allow the period to count towards any presumption.

Amendments Nos. 157 and 158 are needed for consistency. They are substantially the same as Amendment No. 154 and would remove the discretion given to county councils on whether to record a public right of way on a definitive map and statement. Words such as "in the opinion of the authority" or "as appears to them" often appear in statute. Given the certainty of Amendment No. 156, there is no need to give the county council discretion on whether to record them. It must record if an event specified in Amendment No. 156 has occurred. Replacing the words,


    "as appear to them to be",

with "as are" in Section 53(2)(a) and (b) would replace a subjective test with an objective one.

Amendment No. 160 to paragraph 3(1)(b) of Schedule 14 would provide much-needed consultation with the owner of the land before an application was processed by the public authority. There is no current

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provision for the owner of the land to be consulted before a modification order is made. That is a serious lapse in basic human rights.

The amendments to Schedule 15 to the 1981 Act made by Amendment No. 161 reflect the fact that the function of the Secretary of State is confined to resolving appeals on the accuracy of the recording by the public authority, not ruling on the correctness of a decision on whether a right of way exists. That function will pertain to an independent tribunal.

New Section 11(1)(c) reflects the need for reasons to be given for executive decisions to verify their correctness. Again, there is no current requirement for the Secretary of State to give reasons for his decisions. That is particularly important when there is a statutory appeal to the High Court solely on points of law that can be manifest only if a fully reasoned decision is given.

Amendments Nos. 169 and 170 to Section 31 of the Highways Act 1980 would remedy the unfair treatment meted out to the landowner by the interpretations of that section. Too many spurious claims have been passed as good because the public authority, the Secretary of State and finally the courts rely on antiquated legislation that had its roots in common law but that has so deviated from it that it has become no more than a pretence to open up private ways.

The landowner generally has no defence against such claims which more often than not are brought about many years after a supposed dedicator is dead and buried. While the word of the claimant is usually accepted at face value, the landowner once again has an enormous burden of proof to discharge. Even if he has never seen anybody and there has therefore been no need to erect notices, he is still presumed to have dedicated and his word is disbelieved. That gives rise to many abuses. Some sense should be restored to the provision, in line with the original common law from which it derives. Nowadays the intention of the owner counts for very little. Acts of kindness and generosity are by law taken as generating a legal obligation. The trespasser acquires rights, even he knew that he was committing a wrong in the first place.

I turn to Amendment No. 171. New subsection (12) is aimed at putting a stop to claims which, in order to succeed, are delayed before being made. Having carried out all the necessary searches that do not reveal a right of way, a new owner might later be faced with a claim that he cannot defend as it relates to a period in which he was not responsible for the land. Limiting the period in which a claim may be brought will safeguard as far as possible a landowner insofar as the memories of the relevant persons are still relatively recent. I beg to move.

1.15 a.m.

Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Rotherwick, for explaining the amendments. I shall try to deal with them in turn as closely as I can, although they do not quite work out that way.

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They all relate to Section 53 of and Schedules 14 and 15 to the Wildlife and Countryside Act 1981. Section 53 requires surveying authorities to keep their definitive maps and statements under continuous review and to make such modification orders as appear to them requisite on the occurrence of particular events, such as the creation of a footpath or bridleway through deemed dedication or the discovery of evidence which shows how a right of way that has already been recorded should be changed.

Amendments Nos. 169, 170 and 171 to Schedule 6 to the Bill relate to Section 31 of the Highways Act. That section is concerned with the creation of highways through deemed dedication. We do not believe that this group of amendments is desirable.

Amendment No. 154, which is linked to Amendment No. 156, would amend Section 53(2) of the Wildlife and Countryside Act to enforce the notion that a surveying authority is to make orders only as a consequence, or "as are" requisite in consequence, of legal events or declarations of a court or a tribunal. The discretion of what order can be made is narrowed and a surveying authority would be able to respond accordingly only to a declaration of a court.

We do not believe that it would be at all desirable to remove the duties in question from the local authorities. They are part of local government's wider responsibilities for rights of way; for example, the creation, diversion, closure and maintenance of rights of way which, together with the new functions provided in the Bill, provide a comprehensive legislative basis for improving our rights of way.

Moreover, the current legislation, broadly modelled on legislation introduced in 1949, provides the public with what is generally a relatively cheap and accessible way of modifying the definitive map. Amendment No. 156 would replace it with a procedure which would be more expensive, inaccessible and intimidating, and would undermine the objective of the legislation on definitive maps which is to compile as complete and accurate a record of public rights of way as possible. That aim is all the more important given the provisions in the Bill about the cut-off date and unrecorded rights of way.

A consequence of the amendments is that the cut-off date provisions would need to be completely rethought as they are based on the fundamental assumption of surveying authorities being free to make appropriate modification orders and people being able to apply for such orders.

Amendment No. 156 would remove from surveying authorities the duty and, indeed, the power to make modification orders because of the events in Sections 53(3)(b) and (c) of the 1981 Act. In particular, they would no longer be able to make modification orders on their own volition on the basis of a footpath or bridleway being created by deemed dedication or on the discovery of evidence which showed that the definitive map should be modified, for example, to show a new right of way, or that the status of a right of way already shown should be altered. Instead, modification orders other than legal event orders

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could be made only where a court or other independent tribunal established by law had made an appropriate declaration; for example, to the effect that a highway shown in a map and statement should be shown as a highway of another description.

Amendment No. 156 also seeks to insert a new subsection (3A) into Section 53 of the Wildlife and Countryside Act. It aims to prevent the possibility of use of a way wrongly recorded on a definitive map and statement as a public right of way, giving rise to a presumption of dedication or acceptance by the landowner of the way as a public right of way.

We are not entirely clear about the need for this amendment. Dedication of a highway rests on the assumption, or the presumption, of acquiescence on the part of the landowner to the creation of a highway. This notion sits inconsistently with the conclusive effect of the definitive map contained in Section 56 of the 1981 Act because that prevents the landowner from acquiescing, from preventing, particular use of a way on his land. In other words, if a way has been wrongly recorded on a definitive map as a highway, we do not believe that use by the public during that period can create a presumption that the public have a right of way over it. I understand from what the noble Lord, Lord Rotherwick, said that he views Amendments Nos. 157, 158 and 166 as consequential.

Amendment No. 160 would amend Schedule 14 to the Wildlife and Countryside Act 1981. It would have the effect of requiring local authorities to consult landowners on applications for definitive map modification orders before they determine them. We do not believe that additional burden on local authorities to be necessary to safeguard a landowner's interests. Applicants for definitive map orders are already required to give notice to every owner and occupier of any land to which the application relates. Surveying authorities are obliged to take into account any comments made in response to such a notice; otherwise the obligation to serve such notice would appear to serve no purpose. In addition, if a surveying authority makes an order, it too is required to give notice to such owners and occupiers and to advertise the fact that an order has been made before it can be confirmed

At this stage landowners and any other interested party have at least 42 days to make their views known. If there are any objections the order goes to the Secretary of State to confirm, after a hearing or public inquiry where again a landowner has an opportunity to inform the decision which is made.

Amendment No. 161 relates to Schedule 15 to the Wildlife and Countryside Act 1981 which sets out the procedure for the confirmation of definitive map modification orders. It would remove the duty on the Secretary of State to hold inquiries (as opposed to hearings) into opposed orders. It would also expressly require him to set out, in writing, the reasoning behind final decisions on whether to confirm an order and make his reasons available to the public. In fact, he already does so. Decision letters are sent to those who have objected or given evidence on their own behalf and to anyone who asks for one.

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Amendment No. 170 would strike at the very heart of deemed dedication under Section 31 of the Highways Act 1980. It would remove the practical possibility of Section 31 creating a highway through deemed dedication. Broadly speaking, deemed dedication operates because, in the absence of sufficient evidence to the contrary, you must infer an intention to dedicate a highway on 20 years long use--dedication has to be presumed. The amendment defines as sufficient evidence to rebut the presumption a statement by the landowner that during the relevant years he did not intend to dedicate a right of way to the public at large. Such a statement will be challengeable only on the basis of overt acts on the part of the landowner which are inconsistent with lack on intention to dedicate.

It is the case that deemed dedication operates because the landowner is not entitled to argue that locked away in his or her mind was the thought that he did not intend to dedicate land as a highway. He must adduce some evidence of an overt act such as to show to the public that he had no intention to dedicate. That is a key element of the principle of deemed dedication first introduced in the Rights of Way Act 1932 and carried forward by Section 31 of the Highways Act.

If the landowner is concerned about the issue of public use of a way on his land he has many methods available to him to stop time running, to stop the presumption arising. He can erect appropriate signs; deposit the appropriate documents. He can tell the public that they have no right to be on his land; he can close the path off for one day a year; or he can erect gates.

We have made it clear during debates that the Government are not prepared to agree to anything which would undermine the basis of deemed dedication.

Amendment No. 171 is broadly similar to a proposal in the Government's consultation paper on rights of way which suggested that applications to add a right of way to a definitive map on the basis of 20 years' use should be made within five years of the use being brought into question. The intention was to help streamline the process, but further research indicated that the vast majority of claims are already made within five years. On the other hand, it became clear that a statutory deadline for claims would generate greater dispute in cases where there had been a series of challenges and the landowner argued that a claim was out of time.

At best, therefore, the proposal would produce few benefits; at worst it would make the current system more complicated. Any disputes over the date of the challenge would have to be resolved before the substance of the claim could be investigated and more decisions would be likely to be challenged in the courts. We believe those to be good reasons for not proceeding with the proposal and for the same reasons

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we are unwilling to accept Amendment No. 171. I hope that the noble Lord, Lord Rotherwick, will not press the amendments.


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