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Earl Peel: My Lords, I am grateful to the noble Baroness for her reply. She made a good point. I fully understand that in certain circumstances we would not necessarily wish to draw attention to SSSIs. I believe that she went on to say that the Government would expect access authorities to draw attention to them. I hope that they do, when appropriate. I do not think they need to draw attention to the reasons for designation. However, it is important that walkers understand that they are on SSSIs and, as such, special care is needed and, indeed, that special restrictions and by-laws may apply.

The noble Baroness has taken my amendment in the spirit in which it was intended. I have received a reasonably satisfactory answer. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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7.30 p.m.

Clause 20 [Codes of conduct and other information]:

Baroness Farrington of Ribbleton moved Amendment No. 15:

    Page 13, line 19, at end insert (", and

(ii) with regard to public rights of way on, and nature conservation in relation to, access land.").

The noble Baroness said: My Lords, in moving Amendment No. 15, I shall speak also to Amendments Nos. 16, 30, 38 and 44 in this grouping. Government Amendment No. 15 responds to an amendment which was tabled by the noble Baroness, Lady Miller of Chilthorne Domer, on Report.

It provides that the new information duty on the countryside bodies should extend to cover rights and obligations with regard to nature conservation and public rights of way, insofar as such matters relate to access land.

I turn to Amendment No. 16. Clause 25 allows for directions to be made excluding or restricting access for the purpose of fire prevention by reason of any exceptional conditions of weather. We undertook on Report to look again at these provisions to see whether directions might also be made in circumstances where a high risk of fire was not directly attributable to the weather. The amendment provides that directions may also be made by reason of any exceptional change in the condition of the land. We believe that that will go a long way to address the concerns expressed on Report about the risk of fire on access land.

Government Amendment No. 30 makes minor drafting changes to a provision tabled by the noble Baroness, Lady Miller, on Report, which required local access forums to include representatives of other interests especially relevant to an area. Unfortunately, that amendment was omitted from the reprint of the Bill, but is set out in a corrigendum to it. However, this amendment replaces that paragraph to substantially the same effect.

Government Amendment No. 38 ensures that a person on access land who has with him an "engine, instrument or apparatus" used for trapping will be in breach of the restriction in paragraph 1(j) of Schedule 2. It follows a parallel amendment of the list of operations in breach of the restrictions in paragraph 1(j), so as to include trapping, in Committee when we accepted an amendment tabled by the noble Earl, Lord Peel.

Finally, Schedule 13 to the Wildlife & Countryside Act 1981 imposes an obligation on the Countryside Agency to make an annual report to the Secretary of State on the exercise of their functions arising under the National Parks & Access to the Countryside Act 1949, the Countryside Acts 1968 and 1981. Government Amendment No. 44 extends those obligations to require a report on the exercise of their functions under the Countryside & Rights of Way Bill. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, I am especially grateful to the Government for coming

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back with further provisions on the countryside code so that the public are clear on this matter. It is clear from all sides of the House that, from the point of view of farmers, landowners and users, this is one of the most crucial areas in terms of making the Bill work. I am extremely grateful that the Government have widened the extent of the countryside code. I am grateful, too, for the other amendments mentioned by the noble Baroness, which will have the effect of widening the extent of the local access forum.

Lord Greaves: My Lords, perhaps I, too, may add my support to that of my noble friend, Lady Miller of Chilthorne Domer. I welcome also Amendment No. 16, which addresses the question of fire hazards and takes account of exceptional changes in the condition of the land as well as the weather, for which some of us argued at length in Committee. We are grateful to the Government for taking that common sense view.

Earl Peel: My Lords, perhaps I may briefly join with the noble Lord, Lord Greaves, in thanking the Minister for Amendment No. 16, which was tabled in my name on Report. I believe that it addresses the problem we raised. Perhaps I may also thank the Minister for Amendment No. 38, which includes the word, "trapping".

Baroness Byford: My Lords, I, too, take the opportunity to thank the Government. It is lovely for the Government to have a run of thanks from all sides of the House. During our days of debate, which have been long and hard, exchanges from all sides of the House have highlighted practical problems. We are particularly grateful for Amendment No. 16 which recognises the condition of the land, which is important. As regards Amendment No. 44, an earlier amendment proposed that the agency look in greater detail at the requirements within the annual report. We are therefore grateful to the Government for Amendment No. 44.

On Question, amendment agreed to.

Clause 25 [Avoidance of risk of fire or of danger to the public]:

Baroness Farrington of Ribbleton moved Amendment No. 16:

    Page 16, line 28, after ("weather") insert ("or any exceptional change in the condition of the land").

On Question, amendment agreed to.

Clause 26 [Nature conservation and heritage preservation]:

[Amendment No. 17 not moved.]

Lord Kingsland moved Amendment No. 18:

    After Clause 40, insert the following new clause--


(" .--(1) Where an owner or a person with an interest in land proves that he has suffered a diminution in the value of his land or interest therein due to the right conferred by section 2(1), he shall be entitled to claim compensation in the same manner and

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on the same basis as provided under sections 70 to 72 of the National Parks and Access to the Countryside Act 1949 ("the 1949 Act") in relation to land over which an access order has been made under Part V of that Act.
(2) Regulations may be made as under section 70 of the 1949 Act.").

The noble Lord said: My Lords, I move this amendment standing in the name of noble friend Lord Brittan of Spennithorne and myself. Those of your Lordships who have attended the various stages of this Bill will be aware that this amendment has been tabled in substance on previous occasions by my noble friend. For reasons entirely beyond his control he is unable to be with your Lordships tonight. I have no doubt that were he able to be here the cogency of his arguments and the force of his oratory would compel immediate acceptance of the amendment by the Government. I suspect that I might have a more uphill struggle.

My starting point is the often-repeated statement made by the Minister that this amendment is unnecessary because there will be no diminution in value of any estate as a result of the Act. As many of your Lordships are aware, to that there is a simple reply. If indeed there will be no diminution in value, why not include the provision because it will never have to be activated? Noble Lords will have heard the Government's reaction on a number of occasions to that proposition and will know that, despite the Government's belief that there will be no diminution in value, nevertheless they are not prepare to include the provision in the Bill.

I suspect that the reason is very straightforward. It is very hard to conceive that if, for the first time in history, a very large number of people have access to land which was hitherto used exclusively by the owner, there would not be damage and diminution in value. There are precedents in English law for providing compensation in such circumstances. For example, one is contained in Sections 70 to 72 of the National Parks and Access to Countryside Act 1949. When an access order is made, if there is a diminution in value the landowner is entitled to compensation. That right exists despite the fact that there are other provisions in the Act to deal with other kinds of damage. So it is a distinct and self-standing provision.

I have read what the Minister said in response to the fact that this provision exists. The noble Lord said that that is very different because under the 1949 Act there is clear discrimination between landlords whose land is within a national park and landlords whose land falls outside. The distinction between the situation in the 1949 Act and that shown in the Bill is a distinction without a difference. We know that moorland, mountain areas and downland will all be mapped and classified. We know that some landowners will fall within the classification and others will fall outside. Therefore, I wholly fail to understand the distinction that the Minister makes between the situation in Sections 70 to 72 of the 1949 Act and the Bill which the noble Lord has placed before your Lordships today.

There is a second precedent and that is in the Highways Act 1980 as regards those rights of way created for the first time. If I understand the Minister's

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approach correctly, here it is slightly different. He says that that Act affects everybody's land and therefore nobody has rights. That seems to be a truly novel proposition. Just because the rights of a large number of people are affected, it does not mean that they do not have the right to compensation. The fact that they are all in the same boat should make no difference at all to their legal position.

What is the difference between a right of way which gives the user a clear right of passage and a right to go onto land, hitherto not allowed, which gives the person enjoying that right the right to recreation? Once again that is a distinction without the difference. As noble Lords are aware, a right of way is a clear encumbrance on property. If that is so, and if there is no difference in law between a right of way and a right of access, how can the Minister possibly argue that compensation under the European Convention on Human Rights is not payable?

Your Lordships will be aware that under Article 1, Protocol 1 there are two categories which give rise to compensation. The first is where there is a clear expropriation of the right and the second is where the government control someone's property, but do not take it away. By now noble Lords will be familiar with the fact that on 18th April this year the Minister in the other place conceded that the Bill will infringe property rights. If the Minister is to be faithful to that concession, we have here a clear case of expropriation. It is crystal clear from the jurisprudence in the European Court of Human Rights that compensation almost invariably follows.

My noble friend Lord Brittan was more generous than I have been to the Minister because he conducted his promotion of this amendment on the basis that there had not been an expropriation of a right. So to be faithful to my noble friend I shall consider the second situation, mercifully briefly, because the Minister has heard the arguments on several occasions before as have your Lordships.

The second provision of Article 1 I can summarise very briefly. It states that the provision shall not impair the right of the state to control the use of property in accordance with the general interest. In those circumstances what is the test as regards compensation? It is whether or not the public authority disproportionately interferes with the rights. I see the Minister nodding and therefore to that extent we are ad idem.

My argument here, and that of my noble friend Lord Brittan, is that the Act has the effect of making a disproportionate interference with the rights of the landowner. As the Minister is well aware, a recent case in Strasbourg gives great support to my contention. That is the case of Chassagnou where certain hunters were given the right to go on the land of property owners despite the fact that those owners were against their presence. In that case--if I may weary your Lordships with a short extract from the judgment--the Court of Human Rights said,

    "In the present case the applicants do not wish to hunt on their land and object to the fact that others may come onto their land to hunt. However, although opposed to hunting on ethical

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    grounds, they are obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants' enjoyment of their rights as the owners of property. Accordingly, the second paragraph of Article 1 is applicable in the case".

The court went on, as the Minister may be aware, to say that what the hunters did was a clear breach of the convention. It also said that those elements of discretionary compensation which were open to the landowners in that case were insufficient to meet the requirement of compensation under the convention.

It would be difficult to find a case which was closer to the circumstances of the Bill than that. I therefore urge the Minister, at this late stage of the Bill in your Lordships' House, to accept the amendment of my noble friend Lord Brittan.

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