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Lord Williams of Elvel: My Lords, I am most grateful to my noble friend for his response. If I may say so, I think that he has taken the mood of the House. I believe that he is wise to take the matter back and look at it again. I certainly shall not oppose the government amendment. Nevertheless, unless the Government come forward on Third Reading with something that meets the concerns of the House, I may well move my amendment again at that stage and then my noble friend may have a problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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7 p.m.

Lord Whitty moved Amendment No. 194:

    Page 105, line 26, leave out from ("unless") to end of line and insert ("the contrary is proved").

On Question, amendment agreed to.

[Amendment No. 194A had been withdrawn from the Marshalled List.]

Baroness Byford moved Amendment No. 194B:

    Page 105, line 26, at end insert--

("( ) If without lawful authority a person drives a four-wheeled drive vehicle upon any road or pathway not designated on a definitive map as a boat he is guilty of an offence.").

The noble Baroness said: My Lords, we are concerned about the reports of damage to green lanes by owners of four-wheel drive vehicles. We are not satisfied that the use of barriers and notices at the entrances to footpaths and byways will necessarily stop the drivers of these all-terrain vehicles from continuing to plough up the ground and ruin some ancient pathways, which are much appreciated by walkers and wildlife alike.

The problem with these vehicles is that they can cross land that other vehicles cannot cross. We wish to ensure that it becomes an offence to drive any such vehicle without authority on a pathway that is not officially designated as a BOAT (a byway open to all traffic). This would get around the problem of vehicles entering a green lane other than by a recognised entrance point; for example, from the adjoining land, across a ditch, or up a steep embankment. I beg to move.

Lord Monson: My Lords, I support the noble Baroness in principle. However, I wonder whether it is wise to restrict the injunction, so to speak, in the amendment to four-wheel drive vehicles. There are some two-wheel drive vehicles that also cross rough land; indeed, some of them have high-ground clearance. I merely put that point forward for consideration.

Lord Whitty: My Lords, some of the arguments rehearsed in respect of the last group of amendments apply equally to this amendment, but noble Lords will be pleased to learn that I do not intend to repeat them. In essence, we do not believe that it is reasonable for a person to be given a criminal record for exercising public rights of way simply because these have not been recorded on a definitive map. Therefore, all the arguments used in relation to the previous amendments also arise in this respect.

There are some technical shortcomings in this amendment in that it would prevent anyone from driving a four-wheel drive vehicle on motorways and trunk roads, which cannot be recorded on definitive maps. I am sure that that was not the noble Baroness's intention. Indeed, I believe that she may find herself in considerable difficulty with some of the motoring

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fraternity if she tries to pursue that aim. More substantively, the amendment contains the express statutory defence of driving with lawful authority. In this context, "lawful authority" could be restricted to mean the exercise of private rights or specific statutory rights. It could also be interpreted to extend to the exercise of public rights of way, which a court may well conclude so as to preserve people's ability to access their homes. If that were the case, it would, in practice, have no different effect from our Amendment No. 194, which has been passed, where the onus will now be on the defendant to prove, on the balance of probabilities, the existence of public vehicular rights over the right of way in question.

The central point here is that we have grave misgivings about referring to the definitive map as the key determinant of whether or not the driving was lawful. In some circumstances, this might, in practice, prevent people from exercising their lawful rights. I hope, therefore, that the noble Baroness will wait to see whether there is anything further that can be done in relation to the previous amendment. It is to be hoped that I can bring something forward at the next stage, subject to the caveats that I have already given to the House.

Baroness Byford: My Lords, I am most grateful to the Minister. I had not in fact degrouped the amendment, so I was quite surprised to see it placed separately on the Marshalled List. Obviously I realised that it would be covered by the discussion on the previous group of amendments. I thank the Minister for his response. I look forward with anticipation to what he can bring forward at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 194C and 195 not moved.]

Lord McIntosh of Haringey moved Amendment No. 196:

    Before Clause 65, insert the following new clause--


(" .--(1) This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way--
(a) was an offence under an enactment applying to the land crossed by the way, but
(b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.
(2) Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of the premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way.
(3) An easement created in accordance with the regulations is subject to any enactment or rule of law which would apply to such an easement granted by the owner of the land.

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(4) The regulations may in particular--
(a) require that, where an application is made after the relevant use of the way has ceased, it is to be made within a specified time,
(b) specify grounds on which objections may be made and the procedure to apply to the making of objections,
(c) require any matter to be referred to and determined by the Lands Tribunal, and make provision as to procedure and costs,
(d) make provision as to the payment of any amount by the owner of the premises concerned to any person or into court and as to the time when any payment is to be made,
(e) provide for the determination of any such amount,
(f) make provision as to the date on which any easement is created,
(g) specify any limitation to which the easement is subject,
(h) provide for the easement to include any specified right incidental to the right of way,
(i) make different provision for different circumstances.
(5) In this section--
"enactment" includes an enactment in a local or private Act and a byelaw, regulation or other provision having effect under an enactment;
"owner", in relation to any premises, means--
(a) a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of the premises, whether in possession or in reversion, or
(b) a tenant under a long lease, within the meaning of the Landlord and Tenant Act 1987;
"prescribed" means prescribed by regulations;
"regulations" means regulations made, as respects England, by the Secretary of State and, as respects Wales, by the National Assembly for Wales.
(6) Regulations under this section shall be made by statutory instrument, and a statutory instrument containing regulations made by the Secretary of State shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: My Lords, we gave a commitment to the House at Committee stage that we would bring forward our own proposals on the difficult and complex subject of vehicular access over common land. This amendment honours that commitment. The purpose of the amendment is to protect property owners who have been driving across common, or similar, land for many years and who are now faced with having to pay an excessive fee to the landowner for acquiring a legal right to do so. I should stress the word "and" because I am aware that many landowners have acted entirely responsibly on this issue. They have been prepared to grant easements to long-standing users for a nominal sum, perhaps to cover expenses. We do not want the existence of our scheme to mean that such landowners will not continue with that approach.

The amendment gives the Secretary of State the power to make regulations, which will contain the details of the scheme. We decided on this route because we do not consider it appropriate for the scheme that we envisage, which is, of necessity, quite complex, to be included in primary legislation. Before the Report stage, we issued a paper setting out our current view of how the scheme will work. The main elements to be included in the regulations are as follows: first, that the property owner, or his predecessors, must have been

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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, a limit on the amount of compensation that the property owner has to pay to the landowner will be included. In view of the comments made in Committee, and in the responses to the consultation paper, our current view is that this will be 1 per cent of the value of the property for residential properties built before 1st December 1930 and where use of the property is materially unchanged since that date, or 3 per cent for all other properties--or, alternatively, one-third of the increase in value of the property with a right of access, if that is lower.

We have listened carefully to the views expressed on the question of compensation, but remain unconvinced that it would be appropriate to grant any easements for nothing. I should perhaps stress at this stage that nothing in these proposals prevents property owners from claiming a prescriptive right through long use, if they can show that such a right had been acquired before it became an offence to drive across common land.

Thirdly, the regulations will include procedures designed to ensure that the scheme cannot be circumvented and that, where disputes arise, there is an appropriate mechanism to ensure that these can be resolved. I hope that the House will feel able to accept the amendment. It will probably be better if I listen to the arguments behind the amendments that have been tabled to our amendment before responding to them. In the mean time, I beg to move.

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