Select Committee on Delegated Powers and Deregulation Twenty-Seventh Report



ANNEX 2

COUNTRYSIDE AND RIGHTS OF WAY BILL

Second Supplementary Memorandum from the Department of the Environment, Transport and the Regions

INTRODUCTION

1. The Countryside and Rights of Way Bill was brought from the House of Commons on 16 June 2000. The Department submitted its memorandum on the delegated legislative powers under the Bill to the Committee on 26 June. The Committee reported on 4 July in its 24th Report. On 10 July the Government submitted a supplementary memorandum in respect of one additional delegated power proposed for Part I of the Bill by means of an amendment tabled on 10 July for consideration by the House of Lords at Committee Stage.

2. This second supplementary memorandum deals with modifications proposed by the Government to the remainder of the Bill. It identifies new delegated powers as well as amendments to those already identified and explained to the Select Committee in the original memorandum of 26 June. Working drafts of these amendments are annexed to this memorandum [not printed]. The amendments are intended to be tabled shortly.

PART II: PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC

Schedule 5: Definitive maps and statements and restricted byways

Amendments of Part III of the Wildlife and Countryside Act 1981

PARAGRAPH 2: REGISTER OF APPLICATIONS UNDER SECTION 53B

3. Paragraph 71 of the 26 June memorandum describes the regulation making powers in the new section 53B(3) and (4) inserted into the WCA 1981 by paragraph 2 of Schedule 5 to the Bill. Section 53B(1) provides that every surveying authority must keep a register of applications made under section 53(5) of the WCA 1981 for orders modifying a definitive map. It is proposed to amend section 53B(4)(b) so as to clarify what consists of a final disposal of an application. The meaning is extended to include cases where an order is submitted other than on an appeal to the Secretary of State for confirmation.

PARAGRAPH 7

4. Paragraph 75 of the 26 June memorandum describes two new subsections inserted into section 57 (supplementary provisions as to definitive maps and statements) of the Wildlife and Countryside Act 1981 (WCA 1981) by paragraph 7 of Schedule 5 to the Bill: section 57(6A) and (6B). The amendments proposed for Committee Stage will insert a further subsection dealing with documentation: (6C). The new section 57(6C) is a power enabling the Secretary of State and the National Assembly for Wales (NAW) to prescribe by regulations documents that surveying authorities must make available for inspection and the time, manner and place in which this obligation is to be met and for prescribing where one surveying authority should provide documents to another. Section 57(5), (6) and (6A) already address inspection and retention of definitive maps and statements and orders made under Part III of the WCA 1981 and some other documents.

CLAUSE 48:POWER TO AMEND EXISTING LEGISLATION

5. This power is described in paragraphs 56 to 58 of the 26 June memorandum. The amendments to clause 48 insert a new subsection (3A) into clause 48. It is proposed that the NAW will have powers, analogous to those of the Secretary of State under clause 48, to amend or apply with or without modification any "relevant Welsh provision" as a consequence of the creation of the new category of highway - the restricted byway. A "relevant Welsh provision" is defined as a provision contained in a local or private Act passed before or in the same Session as the Bill and relating only to areas in Wales or in any subordinate legislation which was made before the passing of the Bill and which the National Assembly for Wales has power to amend or revoke. The NAW is also to be given a power - again analogous to that for the Secretary of State as respects England - to make consequential amendments that arise out of clauses 46 to 48 or out of regulations made under clause 48(3A).

6. The amendments also insert a new subsection (2A) which relates to the exercise by the Secretary of State of the regulation making power in clause 48(1) in relation to Wales. The Secretary of State may not make any regulations under clause 48(1) that have effect in relation to Wales unless he has first consulted the NAW. He may not make any provision which amends or revokes subordinate legislation of the Assembly without its consent, except where the amendment or repeal of an Act itself has the effect of amending or revoking Welsh subordinate legislation.

7. The new subsection (2B) enables the NAW to submit to the Secretary of State proposals for the exercise of the regulation making power in clause 48(1).

8. The requirement for regulations under clause 48 to be subject to the affirmative resolution procedure applies only to the Secretary of State and not the NAW. Where the Secretary of State makes regulations under clause 48(1) that require consultation with the NAW made under clause 48(2A)(2), he must lay before both Houses of Parliament details of the consultation and of any representations received from the NAW.

Schedule 6: Amendments relating to creation, stopping up and diversion of highways

PARAGRAPH 4: STOPPING UP OF FOOTPATHS AND BRIDLEWAYS FOR PURPOSE OF CRIME PREVENTION, ETC.

9. In paragraph 79 of the 26 June memorandum the Government indicated its intention to introduce the necessary amendment so that designation orders under the new section 118B(1)(a) of the Highways Act 1980 (HA 1980) would be subject to the negative resolution procedure. The final amendment in respect of Schedule 6 achieves this.

PARAGRAPH 5: PUBLIC PATH DIVERSION ORDERS

10. Paragraph 5 of Schedule 5 is affected by the amendments. Paragraph 5 amends section 119 of the HA 1980 (diversion of footpaths and bridleways). Section 119(1)(b) is amended such that the date upon which the extinguishment of a public right of way over a footpath or bridleway takes effect is either as specified in the 'public path diversion order' or as determined in accordance with section 119(3). In the latter case, it is proposed to amend section 119(3) such that the extinguishment of the public right of way is not to come into force until the local highway authority for the new footpath or bridleway certify that the work to make it up has been carried out.

PARAGRAPH 7: DIVERSION OF FOOTPATHS AND BRIDLEWAYS FOR PURPOSES OF CRIME PREVENTION, ETC.

11. The amendments also contain, as regards 'special diversion orders', changes which have an analogous effect on the entry into force of any extinguishment of a public right of way over any 'relevant highway' as described immediately above for public path diversion orders. The provision affected here is the new section 119B(4) and (8). Similarly, the amendments proposed have an analogous effect for 'SSSI diversion orders' the subject of the new section 119D, of which section 119D(3)(b) and (6) are the provisions affected.

CLAUSE 59: DUTY TO PREVENT OBSTRUCTIONS

12. Paragraph 66 of the 26 June memorandum explained that under the new section 130A(3)(b) the Secretary of State and the NAW may prescribe certain descriptions of obstruction in respect of which a notice may be served on a highway authority requesting its removal. This power is circumscribed by new section 130A(4). An amendment to clause 59 recasts section 130A(4)(a) by expanding the description of buildings and other structures that are excluded from the ambit of the section and hence from the reach of the power in section 130A(3)(b).

13. Two of the new amendments to clause 59 replace provisions of the new section 130B which include a requirement under section 130B(1)(a) to serve notice of intention to take proceedings for the removal of an obstruction. Subsection (1) of the new section 130C reproduces that requirement to serve notice and subsection (2) makes provision for regulations relating to the form of, and information to be contained in, the notice. This corresponds to section 130A(7) mentioned in paragraph 66 of the 26 June memorandum, which applies to notices under the new section 130A.

14. It is proposed to amend the new section 130B of the HA 1980 by inserting subsection (6A). Where an order is made under the new section 130B for the removal of an obstruction, the highway authority against whom the order is made is required by the new subsection (6A) to cause notice of the order and the right to appeal against it to be displayed on the highway. Subsection (6A) includes power for the Secretary of State and the NAW to prescribe by regulations the places at which and manner in which notice is to be displayed, and the form of such notice and the information it shall contain.

15. As explained in paragraphs 50 and 51 of the 26 June memorandum, these regulations will be made by statutory instrument and as respects the Secretary of State, be subject to the negative resolution procedure. As the scope of this power is clear on the face of the Bill and it is being taken for administrative purposes, the negative resolution procedure is considered appropriate.

16. Clause 62(1) of the Bill inserts section 22(1)(a)(viii) into the Road Traffic Regulation Act 1984. This has the effect that a traffic regulation order (which when made by the Secretary of State is made by statutory instrument) made under s.1 of that Act may, as respects roads in, or forming part of, or adjacent or contiguous with a Site of Special Scientific Interest, be made for the purpose of enhancing the natural beauty of that area. This in turn shall be construed as including a reference to conserving its flora, fauna and geological and physiographical features (see the new section 22(5) inserted by clause 62(3)).

17. Clause 62(4) of the Bill inserts the new section 22A in the Road Traffic Regulation Act 1984. Section 22A applies, inter alia, to roads other than those to which section 22 applies. Its effect is that a traffic regulation order under section 1 of the Act in connection with vehicular traffic may be made for the purpose of conserving or enhancing the natural beauty of the area, which in turn shall be construed as including a reference to conserving its flora, fauna and geological and physiographical features. It is proposed to table an amendment making it clear that the new section 22A does not apply to a "GLA road".

PART III: NATURE CONSERVATION AND WILDLIFE PROTECTION

18. The amendments introduce a new schedule into the Bill - Schedule 9A (transitional matters). Paragraph 10 of Schedule 9A to the Bill enables the Nature Conservancy Council to serve a 'stop notice' on the owner or occupier of a Site of Special Scientific Interest who was, before the relevant provisions in the Bill come into force, permitted to carry out works as a result of giving four months' notice to do those works (see the current section 28(6)(c) of the Wildlife and Countryside Act 1981).

19. Paragraph 11(2) of Schedule 9A to the Bill applies the regulation making power in section 28D(6) and (7) of the 1981 Act to appeals by a person who has been given a stop notice under paragraph 10(3). The new section 28D(6) and (7) was described in paragraph 109 of the 26 June memorandum.

PART IIIA: AREAS OF OUTSTANDING NATURAL BEAUTY

20. Part IIIA amends the law relating to areas of outstanding natural beauty (AONBs). Section 87 of the National Parks and Access to the Countryside Act 1949 (which provides for the designation of AONBs) and section 88 of that Act are re-enacted as part of the new Part IIIA.

Clause (Establishment of conservation boards)

21. Clause (Establishment of conservation boards) enables the Secretary of State in relation to an AONB in England and the NAW in relation to an AONB in Wales to:

    (a) establish by order a conservation board for the AONB (subsection (1)). Such an order may provide for the transfer to the board of local authority functions (subsection (3)(a)). Alternatively the order can provide that local authority functions are to be exercised concurrently by the local authority and the conservation board (subsection (3)(b)). The power to transfer local authority functions or provide for concurrent exercise can only be utilised if the Secretary of State or the NAW (as the case may be) considers it expedient to do so for the purposes specified in subsection (1) of clause (General purposes and powers): namely, to conserve and enhance the natural beauty of the AONB or to increase the public's understanding and enjoyment of the AONB (subsection (3)); and

    (b) make further provision relating to the constitution and administration of conservation boards (subsection (4)). Such provisions will supplement and complement Schedule (Areas of outstanding natural beauty: conservation boards) (also introduced by this amendment - subsection (2)). Schedule (Areas of outstanding natural beauty: conservation boards) contains provisions concerning the appointment of local authority members to conservation boards (paragraph 4 stipulates that any order must specify one of two methods for the appointment of local authority members) and concerning the appointment of members by the Secretary of State or the NAW (including the appointment of Parish members in England), consultation regarding appointments, the election of chairs and deputy chairs and audit. Subsection (4)(a) to (i) details the particular matters of constitution and administration to which an order under subsection (1) may relate. These include appointment, removal, conduct of members, records and documents, and complaints of maladministration. It is expected that regulations will be made in relation to all the matters set out in subsection (4).

Clauses (General purposes and powers) and (Orders establishing conservation boards)

22. An order establishing a conservation board can also include provisions in relation to the supplemental and incidental powers of the conservation board to which it relates or the limits on those powers, including provision relating to the borrowing of money (subsection (7)(a) of clause (General purposes and powers)). Further, an order establishing a conservation board may provide for any enactment which relates to or limits the supplemental or incidental powers or duties of local authorities or relates to the conduct of, or transactions by, local authorities to apply in relation to the conservation board with such modifications as may be specified in the order.

23. An order establishing a conservation board can include any incidental, supplementary, consequential or transitional provisions that are necessary or expedient (subsection (5) of clause (Orders establishing conservation boards)). This includes the application, extension, exclusion modification, repeal and revocation of any enactment or any instrument made under any enactment (subsection (6) of clause (Orders establishing conservation boards)). It is envisaged that such matters as borrowing, contracting out and the retention of documentation may be addressed in this way.

24. The incidental (&c.) power granted by subsections (5) and (6) is specifically expressed to extend to the transfer of property, rights and liabilities from one person to another (subsection (7) of clause (Orders establishing conservation boards)). The intention is to use this power in respect of such matters as the transfer of real property and obligations to maintain rights of way.

25. An order establishing a conservation board or making transitional provisions following the variation of an AONB, and which (i) provides for the transfer of any property, rights or liabilities or (ii) makes transitional provisions in connection with such transfer or with any order by which functions become or cease to become exercisable by any conservation board may in particular deal with the matters set out in subsection (8) of clause (Orders establishing conservation boards). These include the management and custody of any transferred property and the transfer of liabilities arising under any enactment.

26. An order establishing a conservation board or making transitional provisions following the variation of an AONB may make different provision for different cases, including different provision for different areas or localities and for different boards (subsection (9) of clause (Orders establishing conservation boards)).

27. Before making an order establishing a conservation board in England the Secretary of State must consult the Countryside Agency and every local authority other than a parish council whose area consists of or includes part of the AONB in question. Similarly the NAW must consult the Countryside Council for Wales and every local authority whose area consists of or includes the whole or part of the AONB (subsections (5) and (6) respectively of clause (Establishment of conservation boards)).

28. Where an order establishing a conservation board revokes a previous order establishing a conservation board, this may occur only after consultation with the conservation board to which it relates as well as the consultation described in paragraph 21. Such an order can include provision for the winding up of the board (subsection (7) of clause (Establishment of conservation boards)).

29. An order by the Secretary of State or the NAW establishing a conservation board is made by statutory instrument (subsection (1) of clause (Orders establishing conservation boards)) and when made by the Secretary of State, is subject to the affirmative resolution procedure (subsection (2)). The Government believes that it is necessary to have wide powers to make secondary legislation in relation to conservation boards since a great deal of flexibility is needed when creating them. This is because the powers and duties of each board will vary depending on the location and nature of the AONB for which the board is responsible. Recognising that the order-making power is wide, the Government believes that the affirmative resolution procedure is appropriate, as it will allow for proper Parliamentary scrutiny of such orders.

Transitional provisions when the area of an area of outstanding natural beauty is varied

30. Subsection (9) of clause (Establishment of conservation boards) enables the Secretary of State in relation to an AONB in England and the NAW in relation to an AONB in Wales to make transitional provisions by order when the area of an AONB is varied. This allows provisions to be put in place in relation to functions over land which becomes or ceases to be part of the area of the AONB. This power is exercisable by statutory instrument (subsection (1) of clause (Orders establishing conservation boards)). This order making power is subject to the negative resolution procedure (subsection (3) of clause (Orders establishing conservation boards)). This level of Parliamentary scrutiny seems to the Government to be appropriate since it is not a power to alter the substantive functions of conservation boards but merely makes it possible for the functions to relate to the newly varied area of the AONB.

PART IV: MISCELLANEOUS AND SUPPLEMENTARY

CLAUSE 77: COMMENCEMENT

31. Previously the Bill provided in clause 77(3) that the Secretary of State was empowered to commence Part II of the Bill on an appointed day by order made by statutory instrument. Clause 77(3) has been deleted so that Part II now comes into force in accordance with clause 77(4). This means that Part II will be brought into force by an order made by the Secretary of State as respects England and the NAW as respects Wales. However, it is proposed that clauses 54, 55 and 60 to 63 (and Schedule 7) should commence at the end of the period of two months beginning with the day on which the Act is passed. Accordingly, they will be added to those sections appearing in the list at clause 77(2).

18 July 2000


 
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