Select Committee on Delegated Powers and Deregulation Thirty-Fifth Report


Countryside and Rights of Way Bill: Amendment 196: vehicular access across common land

Letter to the Clerk from the Department of the Environment, Transport and the Regions

I refer to our telephone discussion earlier today in which I notified you of an amendment creating a new delegated power.

This amendment was originally tabled on or about 30 October and subsequently itself became the subject of a number of non-Government amendments (196A to 196J). Amendment 196 came on for debate last night during the third and final session of Report - see Hansard at column 410 and following.

At column 420 the Minister addressed Amendment 196H moved by the Baroness Byford and the Lord Glentoran. That amendment was designed to make regulations made under the new clause subject to the affirmative resolution procedure.

Unfortunately, some confusion ensued in the Chamber as to whether the new clause had already been considered by the Committee or whether the Committee was yet to report. Unbeknown either to the Minister or officials in attendance, this new delegated power had not been included in the Department's 3rd Supplementary Memorandum submitted to the Committee on 31 October. The Minister's observations in the penultimate paragraph of column 420 need to be understood in this light.

As regards Amendment 196H and the question of the level of Parliamentary scrutiny, I am now able to report that the Government intends to table an amendment so that regulations made under the new clause will be subject to affirmative resolution.

In the meantime, I attach the details of the new power in the usual manner.

Ian Clyde

17 November 2000

Memorandum by the Department of the Environment, Transport and the Regions


1. The purpose of this amendment is to protect property owners who have been driving over a way across common or other land for over 20 years (as a means of access to the property) but who are now faced with an excessive charge from the landowner if they wish to continue so doing. The issue has arisen as a result of a relatively recent ruling confirming that no easement by long use is capable of creation where the use itself constituted a criminal offence. It is an offence to drive vehicles over common land under a number of enactments.

2. Subsection (1) makes the power described below applicable 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 the use of that way was an offence under an enactment applicable to the land over which the way passes but would otherwise have been sufficient to create, on of after a date to be prescribed by regulation, an easement giving a right of way for vehicles.

3. Subsection (2) provides that regulations may be made as respects a way of the sort described, for the creation, in accordance with the regulations, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way. The owner of the premises will be required under the regulations to make an application for the right of way and to comply with prescribed requirements.

4. Subsection (4) provides that in particular, the regulations made under subsection (2) may address a number of detailed factors, including the opportunity for objections to be lodged, referral of any matter to the Lands Tribunal (and the procedure therefor) and provision for payment for the right of way. On this last point, it is envisaged that compensation for the creation of a right of way will be capped.

5. Regulations made under this new section shall be made by the Secretary of State as respects England and the National Assembly as respects Wales: subsection (5).

6. According to subsection (6), the regulations shall be made by way of statutory instrument subject to the negative resolution procedure. However, see now #10 below.

7. It is apparent from the breadth of factors to be addressed by the regulations that the subject matter is fairly complex and the level of detail required is substantial. In part, the detail will be required to ensure that landowners over whose land the way runs are not able to avoid the application of this new form of statutory right of way over a way the subject of the new section. It is also envisaged that the capping of compensation (see #4 above) will vary depending on the type of affected premises in question. Compensation could also be made payable by instalments. Further, the circumstances in which a way of the type covered might arise are potentially many and varied, which explains the capacity of the regulations to deal with differing circumstances - for example, where the owner of the land is a charity: subsection (4)(i).

8. An indication in general terms of the way in which the delegated powers will be used to achieve the Government's objectives appears in the debate recorded in Hansard at column 411 to 412. There is then further indication as the debate unfolds of some specific factors likely to feature in the regulations. Most of these are mentioned herein.

9. In the Government's view, the matters outlined (or referred to) in #7 and #8 demonstrate the appropriateness of using a delegated power to achieve the object described in #1. It would be infelicitous to try to incorporate the necessary provisions onto the face of the Bill.

10. Although Amendment 196 was originally envisaged as a delegated power subject to the negative resolution procedure, the introduction of Amendment 196H has led the Government to revisit the question of level of Parliamentary scrutiny. The Government now accepts that the nature and extent of the power is such that the commensurate level of scrutiny is affirmative resolution. The Government intends to table an amendment to make the regulations subject to the affirmative resolution procedure.

17 November 2000

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