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Warm Homes and Energy Conservation Bill

Read a third time, and passed.

Countryside and Rights of Way Bill

4.34 p.m.

Lord Whitty: My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.--(Lord Whitty.)

On Question, Motion agreed to.

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

Lord Luke moved amendment No. 164:

(" . In section 147(5) of the Highways Act 1980 (power to authorise erection of stiles, etc on footpath or bridleway), after "forestry" there is inserted "or for the breeding or keeping of horses".").

The noble Lord said: My Lords, this amendment is simply about extending Section 147 of the Highways Act 1980 to include land used for the breeding and keeping of horses. We are extremely grateful to the Government, who have clearly listened to our representations on the subject. Indeed, government Amendment No. 196K, which is grouped with our two amendments, absolutely answers our question. We are most grateful.

Amendment No. 165 would extend the existing powers to erect barriers and would allow the erection of bollards and other works to prevent unlawful use of a footpath or bridleway. We are equally grateful to the Government for their Amendment No. 198, which deals with the problem. However, I have a few questions for the Minister. In particular, can the noble Lord say what kind of barrier should be erected? I am most in favour of the "Kent gate"; in other words, upright stakes that are put into the ground at such a distance on either side of a track that could be negotiated safely by a horse and buggy--and, obviously, anything narrower--but which would create a pathway that was too narrow and too high to allow any powered vehicle to pass. I shall be most grateful if the Minister can comment on that point.

We are still concerned that it will be difficult for owners to show that there are sufficient safety grounds to persuade authorities to use the powers granted under Amendment No. 198 to erect barriers. In particular, will any instances of unlawful use be enough to justify the implementation of those powers? Further, what guidance will the Government give to local authorities to encourage them to use these new powers? It should not be forgotten that we are talking about unlawful vehicular use and that these bridleways

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are vulnerable to thieves using 4x4 vehicles. We should do our best to ensure that that does not happen in the future. I beg to move.

Lord Monro of Langholm: My Lords, I thank the Government for the concession they have made. My one worry concerns the word "bollard". Naturally if one is crossing a fence round a field there will be a stile, a kissing gate or something similar. However, a bollard on a route causes me some concern because the unexpected happens in the countryside. If there is an accident or an aircraft crash, one needs to get emergency vehicles along a route as quickly as possible. A bollard is an immovable object, concreted in the ground. We should try to encourage the use of gates that can be easily opened and shut. Gates are more advantageous than bollards in the countryside. It may be easier to ride one's bicycle round a bollard, but in an emergency it could be a damned nuisance.

Baroness Miller of Chilthorne Domer: My Lords, we welcome the fact that the Government have brought forward an amendment to address the nuisance of unlawful vehicular use of paths or ways that we discussed on a previous occasion. Paragraph (b) of Amendment No. 165 in the name of the noble Baroness, Lady Byford, seeks to address that problem. I hope that the Minister will clarify the issue raised by paragraph (a) of the amendment. One can reasonably only have stiles on footpaths and gates on bridleways--footpaths and bridleways are mentioned in the government amendment--because surely a stile on a bridleway is an obstruction for a horse unless the horse and rider were capable of jumping over it. However, it would be unsafe and unreasonable to expect them to do so. I hope that the Government will clarify that their intention is not that further obstacles should be placed on bridleways.

Lord McIntosh of Haringey: My Lords, I am grateful for the comments of the noble Lord, Lord Luke, on Amendment No. 164 and on our Amendment No. 196K. I do not think that I need add anything to that. I believe that I can give all noble Lords the reassurances they seek. The noble Lord, Lord Luke, asked whether the Bill, as it will be amended, will cover what I think are sometimes called separated barriers. I think he was talking about Kent gates. It will cover barriers, rails, fences, posts--we do not use the word "bollard"--or anything which acts as an obstruction.

The noble Lord, Lord Monro, was concerned about access for emergency vehicles. That will be taken into consideration as regards the kind of obstruction that is erected. A concreted-in bollard which obstructed an ambulance would be undesirable. That can be overcome by having obstructions which are capable of being removed by the emergency services, as used frequently in urban areas.

The noble Baroness, Lady Miller of Chilthorne Domer, asked whether it was intended that stiles should be used on footpaths and gates on bridleways. There is no restriction here. Any of those obstructions

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could be used on footpaths or bridleways, as appropriate. If the bridleway were to be used by horses, it would be inappropriate to erect a stile. I do not disagree with the noble Baroness; I simply say that the restriction she appears to think is implied in our amendment does not exist.

I return to the important point made by the noble Lord, Lord Luke, and the noble Earl, Lord Peel, about unlawful use. We are talking here about measures to safeguard, for example, pedestrians or horse riders from the dangers posed by vehicular traffic. Therefore we are talking about the protection of the public. Indirectly, the measure could be used to prevent unlawful use of the routes we are discussing because it would make it unlawful to drive a motor vehicle on a bridleway. I hope that that reassures the noble Earl, Lord Peel, with regard to the crime aspect that he mentioned as it is intended to reassure him.

Earl Peel: My Lords, with the leave of the House, I seek a point of clarification; for example, a path or a track might be used persistently by a vehicle illegally but there is no danger to the public and the track in question may not lead anywhere other than on to a circular route. However, such use may result in wear and tear on the track with the owner or occupier having to meet the cost out of his own pocket. Will the noble Lord assure the House that a barrier could be erected in those circumstances?

Lord McIntosh of Haringey: My Lords, I cannot conceive of a case where a right of way of the kind we are discussing could be used by motor vehicles without a risk of danger to the public. Therefore, the conditions we are discussing would apply. However, we can debate that issue when we discuss other aspects of these amendments.

Baroness Scott of Needham Market: My Lords, before the noble Lord sits down, is he confident that the erection of stiles would not run contrary to the spirit or the letter of recent disability discrimination legislation? Stiles would comprise difficult obstacles to negotiate for some categories of user.

4.45 p.m.

Lord McIntosh of Haringey: My Lords, the authority responsible for the obstruction would have to consider whether it was reasonable. The authority would be bound by the provisions of the Disability Discrimination Act. I cannot imagine that the Disability Discrimination Act is intended to provide access for disabled people to all non-vehicular rights of way, but I am sure that the authority would have to take it into account.

Lord Luke: My Lords, before the noble Lord sits down, did he answer the question about guidance to local authorities to encourage them to use these new powers?

Lord McIntosh of Haringey: My Lords, the powers are available and local authorities have access to them.

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If it is necessary to produce guidance I am sure that we shall be willing to do so, but I do not think that I want to commit us to more public expenditure if, as I think, there will be widespread popular support for these measures.

Lord Luke: My Lords, I am a little dissatisfied with the answer to Amendment No. 165. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 165 not moved.]

Baroness Byford moved Amendment No. 166:

    After Clause 50, insert the following new clause--


(" .--(1) Any public right to use a way with mechanically propelled vehicles that--
(a) existed before 1st January 1949;
(b) is not over a trunk, classified, principal or special road;
(c) is over a way that does not appear at the cut-off date on the definitive map as a byway open to all traffic; and
(d) is not shown to have been exercised by the public at any point between the commencement of this Part and the cut-off date,
shall be extinguished immediately after the cut-off date.
(2) Any owner or lessee of premises adjoining or adjacent to a way over which public rights have been extinguished under subsection (1) above shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the way.").

The noble Baroness said: My Lords, I again thank the Minister for agreeing to meet myself and the noble Baroness, Lady Scott, following our discussions in Committee. In Committee I believe that the noble Lord referred to my amendment as a "brave" attempt. We have subsequently met the Minister and have tried to improve it, but this is a difficult problem.

Amendment No. 166 is my revised version of what was Amendment No. 360A. The proposed new clause has four tests in paragraphs (a) to (d) that need to be satisfied for vehicular rights (only for mechanically propelled vehicles) to be extinguished. The extinguishment applies only to rights pre-1949 over effectively unclassified ways that do not appear on the definitive map and which are not used. A way would only have to fail on one of the criteria in paragraphs (a) to (d) to preserve the right of the public to drive on the route.

Much of the debate in Committee concerned the misconception that all ways not recorded as byways open to all traffic (BOATs) would be extinguished. That is not the case with this amendment, nor was it with the previous amendment. The only routes over which vehicular rights were extinguished would be minor, unclassified ways that were not used and did not appear on the definitive map as BOATs.

Noble Lords also seemed concerned that the public's right to use vehicles over each route would have to be dealt with on a case-by-case basis. That is the case now for vehicular routes that are used by the public but do not appear on the definitive map.

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There is not now a mountain of claims against the public's right to use such roads, so why should there be in the future? In theory all such ways could be challenged but the cost sanctions which exist for losers in the civil cases guard against spurious claims. If the amendment were accepted, it is unlikely that routes used by the public would be challenged.

I corrected a drafting error by changing "or" to "and". The amendment provides that only rights in mechanically propelled vehicles in existence before 1949 would be extinguished. I hope that that clarifies the matter. I beg to move.

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