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Baroness Scott of Needham Market: My Lords, the House is strangely subdued following the courtroom dramas before the adjournment. Nevertheless, these are important amendments and I thank the Minister for bringing forward the two amendments in response to the concerns that we raised at earlier stages of the Bill. There was general support on all sides of the House for the concept of a more user friendly-based approach to rights of way, and an understanding that for many people the rights of way network provides an opportunity for all kinds of healthy activities and so on which are cheap and available to everyone.

The issue of the magistrates' courts is of great importance to those people who seek merely to exercise their lawful right to use a right of way which appears on the definitive map--and which has often appeared there only after a great deal of determined effort on the part of a user group to put it there. To find

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that not only are these routes sometimes obstructed but also that someone found guilty of placing an obstruction cannot be forced to remove it, is a great frustration.

Although the Government have chosen to take a slightly different approach from the one that we would have taken, I am pleased that the amendments have gone a long way towards addressing this particularly difficult issue.

Baroness Byford: My Lords, I, too, thank the Government for bringing forward this group of amendments. The noble Lord, Lord Northbourne, is not in his place. He raised the issue--which, as the noble Baroness, Lady Scott, said, received great support from all sides of the House--and we are grateful to the Government for their response.

On Question, amendment agreed to.

Clause 64 [Power to order offender to remove obstruction]:

Lord McIntosh of Haringey moved Amendments Nos. 21 and 22:

    Page 46, leave out lines 9 to 14.

    Page 46, line 18, at end insert ("; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding one-twentieth of that level for each day on which the offence is so continued.

(5) Where, after a person is convicted of an offence under subsection (4) above, the highway authority for the highway concerned exercise any power to remove the cause of the obstruction, they may recover from that person the amount of any expenses reasonably incurred by them in, or in connection with, doing so.
(6) A person against whom an order is made under subsection (1) above is not liable under section 137 above in respect of the obstruction concerned--
(a) during the period fixed under that subsection or any extension under subsection (2) above, or
(b) during any period fixed under section 311(1) below by a court before whom he is convicted of an offence under subsection (4) above in respect of the order.").

On Question, amendments agreed to.

Clause 68 [Vehicular access across common land etc.]:

The Earl of Selborne moved Amendment No. 23:

    Page 48, line 13, at end insert--

("( ) In the case of access to a site containing a residential property or properties whose construction was completed prior to 1st January 1906 and where the number and use of the building or buildings is materially unchanged since that date, no sum of money is payable by the property owner to the owner of the access land so long as there is no evidence that the access land owner either restricted or licensed the right of access during the period from 1st January 1906 to 5th May 1993.").

The noble Earl said: Amendment No. 23 seeks to resolve what I believe to be an inequity which still faces some owners of property built before 1906 to which access is gained over common land.

We have dealt with this issue at every stage of the Bill and I need not remind the House of the problems which arose from properties which had access over common land. From 1926 onwards it was a criminal offence to drive over commons, and so prescriptive

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rights could not be gained from 1926 onwards. One would have thought that the owners of properties built in 1906 and earlier would not have too much to worry about. After all, the significance of the date 1906 is that it is 20 years before 1926. If owners could prove that they had rights of access for vehicles--whether wagons, carts, pony and trap or motor vehicles--from 1906 onwards, they would have no need to avail themselves of the provisions of Clause 68, the most helpful clause that the Government added at Report stage. It is correct that if they can prove that they had access from 1906 onwards, there is simply no problem. However, in many cases, that is simply impossible. A careful examination of the map does not necessarily reveal how access was gained to such houses. There is, therefore, great difficulty in gathering evidence to prove how it was acquired.

Any reasonable court could infer--not "presume"; I use the word "infer" carefully--that if someone has lived in one of these houses, some of which date only from 1906 but others go back to the time of Queen Anne, there must have been access to the house for vehicles of some kind. I think I am also right in saying that it not impossible--even if a house owner cannot demonstrate that the track was used continuously--for a court to infer that the right of way would have been transferred as the track changed.

It may seem obvious that people who own houses dating back to 1906 or earlier have nothing to worry about. But they do worry. Under the terms of the regulations there will be a requirement to serve notice on the access owner within a period that will be determined. If the house owner does not avail himself of that because he thinks that it is all right not to do so, he could find himself in court facing the access owner who is claiming that the statutory right of access has not been registered and that he will demonstrate that the house owner does not have a prescriptive right. Then, the house owner will face the most appalling complications in court.

As the noble Lord, Lord Williams, said at an earlier stage of the Bill, for most of us the instinct is not to face court if it can be avoided. The alternative is to pay a bill of 1 per cent of the value of the land or whatever the regulation suggests. We can assume that the figure will be 1 per cent, as that is the amount suggested for houses built before 1930. I have no quarrel with a figure of 1 per cent for houses built in the 1920s or thereabouts, which cannot have had a prescriptive right. As I have explained, the ability to acquire prescriptive rights ended in 1926, so the 1 per cent is perfectly reasonable. But the house owner who, because he does not have the stomach or even the means to go to court with what could be a problematical case in the absence of documentary evidence, pays the 1 per cent when he is fairly certain that a court could infer a right of access is effectively taking out a very expensive insurance policy. It is a great deal of money. It is not unreasonable to assume that some of these houses, even if they are lived in by people of relatively modest means, are highly desirable nowadays, being set in the middle of a common. The

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value of the house will normally be in six figures. We are talking about between £1,000 and £3,000 for an insurance policy in order to make sure that one cannot at a later date be held up for some larger figure because the time which Clause 68 helpfully allows for the acquisition of the statutory right has run out.

My amendment may or may not be appropriate. It suggests that there could be a presumption of a prescriptive easement and that, therefore, there would be no payment. I listened to the high-powered legal debate that took place earlier and I venture into these affairs as a "country boy"--my noble friend Lady Byford described herself as a "country girl". I am fairly clear that I shall be told by the Minister that it is most unwise to acquire a prescriptive easement by presumption. Nevertheless, I hope that he will recognise that a precedent has been created in having two tiers of rates--one for houses built before 1930 and one for those built after 1930. We believe that the respective rates may be 3 per cent or 1 per cent. In the case of houses built before 1906--in regard to which any reasonable court would infer some sort of access--the regulations should provide a third tier. That third tier should be something less than 1 per cent, simply to demonstrate that you have paid a sum of money; but you should not be held to ransom, which, I believe, is effectively the case because you are not sure whether you can ultimately prove your prescriptive right.

When they are drawn up, I hope that the regulations will at least have a third tier, a much lower tier, for those pre-1906 cases. I recognise that that is not what my amendment says; indeed, I acknowledge that fact. I see the glint in the Minister's eye and suspect that he may shoot me down with legal information which I shall find little to counterbalance. Nevertheless, I commend to him the idea that, having enjoyed their houses and the access to them by whatever route for so long, these 1906 householders will be faced with an astonishing bolt out of the blue when they find that they are expected to pay 1 per cent of the value of their houses to someone who has suddenly been identified as the owner of the commons. In the circumstances, a nominal payment for these access owners could be described as a "windfall". So let us not hear about human rights for the landowners. I beg to move.

9.45 p.m.

Baroness Miller of Chilthorne Domer: My Lords, my noble friend Lady Sharp attached her name to some of the amendments moved previously by the noble Earl, Lord Selborne. However, she is unable to be here this evening because she is in the process of presenting a scientific paper. She very much wants me to say from these Benches that we are all most grateful to the noble Earl for bringing this issue to the attention of the House. Indeed, he has enjoyed much success in getting this issue resolved.

Although, as the noble Earl acknowledged, this amendment may not be legally perfect, I am sure that my noble friend would join with him in hoping that the Government will take on the idea behind his proposal. As they continue to bring forward orders relating to this issue, perhaps the Government will bear in mind

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the feelings expressed by this House in trying to resolve the problem. In the meantime, I thank the noble Earl for his persistence in pursuing this matter, thereby ensuring a resolution under the Bill and avoiding a delay of many years.

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