Select Committee on Delegated Powers and Deregulation Twenty-Fourth Report


ANNEX 1

COUNTRYSIDE AND RIGHTS OF WAY BILL

Memorandum by the Department of the Environment, Transport

and the Regions

INTRODUCTION

1. The Countryside and Rights of Way Bill was introduced into the House of Commons on 3 March 2000 and brought from the Commons on 16 June 2000.

2. This Memorandum -

  • summarises the main provisions of the Bill;
  • identifies the delegated powers and describes their purpose;
  • explains the reason for leaving these matters to delegated powers; and
  • explains the nature of and reason for any Parliamentary procedures which apply.

OUTLINE AND SCOPE OF THE BILL

3. The Bill contains measures to improve public access to open country and registered common land; amends the law relating to rights of way; and amends the law relating to nature conservation by strengthening protection for sites of special scientific interest and providing extra powers in connection with the prosecution of wildlife crime.

4. The Bill is divided into four Parts:

  • Access to the countryside;
  • Public rights of way and road traffic;
  • Nature conservation and wildlife protection; and
  • Miscellaneous and supplementary.

PART I: ACCESS TO THE COUNTRYSIDE

5. Part I of the Bill contains provisions to introduce a new statutory right of access for open-air recreation to mountain, moor, heath and down (known as "open country") and to registered common land. It also allows landowners, if they wish to do so, irrevocably to dedicate any land to public access. Land to which the right of access applies is called "access land".

6. Chapter I provides for the new right to be subject to various restrictions, set out in clause 2 and Schedule 2. For example, the right will be lost if a person commits any criminal offence. The right does not extend to using a vehicle and, at certain times of the year, dogs must be kept on leads. Chapter I also requires maps of open country and registered common land to be prepared by the Countryside Agency and the Countryside Council for Wales. Chapter II contains provisions for the exclusion or restriction of access. Landowners will be able to exclude or restrict access for any reason for up to 28 days each year. Landowners will also be able to apply for exclusions or restrictions for land management reasons and for the avoidance of the risk of fire and danger to the public. The Countryside Agency, the Countryside Council for Wales and, in National Parks, National Park authorities will be able to give directions for these purposes and, in addition, will be able to direct exclusions and restrictions on the grounds of nature and heritage conservation.

7. Local highway and National Park authorities ("access authorities") will have the power under provisions in Chapter III to enter into agreements with owners and occupiers regarding means of access to access land. These agreements may cover such things as maintenance and improvement of means of access. Access authorities will be able to contribute to the cost or undertake the necessary work. Where agreements cannot be reached, access authorities will have the power to proceed on their own and they may also require owners and occupiers to remove obstructions or refrain from stopping up a means of access. Clause 40(1) provides that wherever the power to make an order or regulations is conferred by Part I on the Secretary of State or the National Assembly for Wales ("NAW"), it is exercisable by statutory instrument. Under clause 40(2), any such power includes the power to make different provision for different cases and to make such incidental, supplementary, consequential or transitional provision as is considered necessary or expedient.

POWERS IN PART I OF THE BILL

CLAUSE 40: GENERAL PROVISIONS AS TO ORDERS AND REGULATIONS UNDER PART I

8. Clause 40 provides that all regulations made by the Secretary of State under Part I are subject to the negative resolution procedure. This is considered the appropriate level of Parliamentary scrutiny, given that the scope of the regulations is limited and the powers largely deal with administrative or technical matters. In the case of the order-making power under clause 3 (which would extend the right of access to coastal areas), a matter of principle is involved and the Government is therefore of the view that a higher level of scrutiny is justified. Accordingly, clause 40(3) provides that no such order may be made by the Secretary of State unless a draft has been laid before and approved by resolution of each House of Parliament.

9. Clause 41(1) defines "regulations" as meaning regulations made (as respects England) by the Secretary of State or (as respects Wales) by the NAW. Clause 41(1) also defines "prescribed" as meaning prescribed by regulations.

CHAPTER I: RIGHT OF ACCESS

SCHEDULE 2, PARAGRAPHS 3, 4(2) AND 6(3): RESTRICTIONS TO BE OBSERVED BY PERSONS EXERCISING RIGHT OF ACCESS

10. Paragraph 3 of Schedule 2 provides a power to amend the list of restrictions in paragraph 1 and the associated definition provisions in paragraph 2. This will enable the restrictions to be amended in the light of experience of the operation of the statutory right and to take account of, for example, new forms of recreational activity.

11. Paragraph 4(2) enables the period in each year during which a person who is exercising the right of access must keep a dog on a lead to be changed from the period specified in paragraph 4(1). This will enable the period to be adjusted if it becomes apparent that it should start or finish at a different time.

12. Under paragraph 6, the restrictions under Schedule 2 may be lifted if the owner agrees. Paragraph 6(3) provides a power to make detailed provision as to the giving of directions and consent for this purpose and publicity for any such direction or its revocation.

CLAUSE 3(1): POWER TO EXTEND TO COASTAL LAND

13. Clause 3(1) provides that the Secretary of State (for England) or the NAW (for Wales) may by order amend the definition of open country to include a reference to coastal land (or coastal land of any description). Coastal land is defined in clause 3(3). In Part V of the National Parks and Access to the Countryside Act 1949, which provided for access agreements and access orders, open country was defined to include "foreshore (including any bank, barrier, dune, beach, flat or other land adjacent to the foreshore)".

14. Clause 3(2) enables an order under this clause to make consequential amendments of Part I of the Bill and to modify the provisions of Part I in their application to coastal land. The Government intends there to be widespread consultation before any extension of the statutory right to coastal land. As part of that consultation, it may become apparent that aspects of the scheme which apply to mountain, moor, heath or down and registered common land are not appropriate in the case of coastal land, and it will then be possible to make the necessary modifications.

15. Since an extension of the categories of access land would significantly widen the scope of the new right and there is power to modify the provisions of Part I in its application to coastal land, it is appropriate that a coastal land order made by the Secretary of State is subject to the affirmative resolution procedure.

CLAUSES 4 -11: MAPS

16. Clauses 4 and 5 require the Countryside Agency and the Countryside Council for Wales ("the countryside bodies") to draw up and consult on maps of open country and registered common land. Clause 5 sets out a procedure for public consultation on draft maps. The countryside bodies will take any comments during that consultation into account when revising the draft maps which they will then issue as provisional maps.

17. Clause 6 creates a right of appeal to the Secretary of State and the NAW against the showing of any land on provisional maps as access land. The right may be exercised by anyone with an interest in the land (as defined in clause 41(1)). Clauses 7 and 8 and Schedule 3 set out a procedure for the hearing of appeals and make provision for the Secretary of State and the NAW to delegate appeal functions. Clause 9 provides for a provisional map to be confirmed as a conclusive map once all appeals have been determined or, if no appeals ensue, after the period for lodging appeals has passed. Clause 10 requires the countryside bodies to review any conclusive map within 10 years and at least every 10 years thereafter.

CLAUSE 5(B): PUBLICATION OF DRAFT MAPS

18. Clause 5(b) confers a power to prescribe the period within which any representations on draft maps which are received by the countryside bodies must be considered by them. It is intended that the length of this period will be prescribed after taking into account the views of the countryside bodies and other interested parties.

CLAUSE 10(3): REVIEW OF MAPS

19. The periods within which the first review of a conclusive map and subsequent reviews must be undertaken may be amended by regulations. The purpose of this power is to provide flexibility. With changing patterns of land use and the possibility of human error, maps showing mountain, moor, heath and down must be subject to periodic review. Once the mapping and appeal processes have been completed and the right has been in force for some time, it will be possible to gauge how often a review is necessary. If experience suggests that 10 years is inappropriate, the period may then be amended.

CLAUSE 11: REGULATIONS RELATING TO MAPS

20. Clause 11(1) provides that regulations may be made supplementing the provisions contained in clauses 4 to 10. The purpose is to specify in detail the procedures to be followed in connection with mapping. It is expected that regulations will be made in relation to all the matters set out in clause 11(2). The level of detail required and the need for flexibility make the use of delegated powers appropriate.

21. Clause 11(2)(a), (b) and (e) are closely related. Clause 11(2)(a) and (b) enable regulations to address the scale on which maps are to be prepared and the manner and form in which maps will be prepared and issued. Clause 11(2)(e) provides that the Secretary of State and the NAW may make provision with respect to the manner in which maps in draft form, provisional form or conclusive form are to be published or made available for inspection. It is anticipated that both physical inspection and electronic access will be made available, although any map must be capable of being produced in printed form (clause 11(3)).

22. Clause 11(2)(c) provides that the Secretary of State and the NAW may make regulations with respect to consultation with access authorities and other persons on maps in draft form. It is intended that there should be wide consultation with respect to draft maps. Related to this is the power in clause 11(2)(d) to make provision with respect to the steps to be taken for informing the public of the issue of maps in draft form, provisional form and conclusive form.

23. Clause 11(2)(f) provides that the Secretary of State and the NAW may make provision with respect to the period within which and the manner in which representations about a draft map may be made to the countryside bodies. The countryside bodies are under a duty to consider representations received with respect to draft maps within the prescribed period (clause 5(b)). It is hoped that it will be possible for representations to be made by electronic means as well as in paper form.

24. Clause 11(2)(g) provides that the Secretary of State and the NAW may make provision by regulation with respect to the confirmation of a map under clause 5(c). Clause 5(c) provides that the countryside body, having considered any representations, is to confirm the draft map with or without modifications. The map is then issued in provisional form, which is the form upon which an appeal may be taken to the Secretary of State or the NAW. If no challenge is made to a provisional map, it will be issued in conclusive form.

25. Clause 11(2)(h) to (j) concern appeals on maps in provisional form. Appeals are made to the Secretary of State in the case of land in England and to the NAW in the case of land in Wales. Provision may be made for the period within which and manner in which appeals are brought, the advertising of such an appeal and the manner in which appeals are to be considered.

26. Clause 11(2)(k) provides that the Secretary of State and the NAW may by regulations make provision with respect to the procedure to be followed on a review under clause 10, including the issue of maps in draft form, provisional form and conclusive form on a review. It is envisaged that such regulations may provide for notification of the review, consultation, representations from the public and publication of the conclusions of the review. Clause 11(4) provides that regulations made pursuant to clause 11(2)(k) can include the application of any of the appeal provisions in Chapter I to an appeal against a map in provisional form issued following a review.

27. Clause 11(2)(l) enables regulations to be made permitting the countryside bodies to make minor corrections to maps independently of either the appeal process or the full review of maps under clause 10. Such provision will help ensure that maps are as accurate as possible.

CLAUSE 16: DEDICATION OF LAND AS ACCESS LAND

28. Clause 16 enables the owner of land to dedicate land for the purposes of Part I of the Bill (unless it becomes excepted land), so that the land will be treated as access land for the purposes of the general right of access under clause 2(1). Clause 16(1) provides for regulations to be made to prescribe the steps necessary to effect a dedication. Clause 16(2) provides a power to prescribe interests in land (in addition to the leasehold interest) the holder of which is required to give his consent in order for a dedication to be valid in any case where the holder has not joined in the dedication. The consent is to be given in such manner as may be prescribed.

29. The power to prescribe interests other than the leasehold interest is designed to allow the specification of other interests significant enough to warrant involvement in a dedication. The use of delegated legislation will allow any such interests to be specified following widespread consultation and for modifications to be made if this should prove necessary. Clause 16(6)(a) provides that regulations may be made prescribing the form of any instrument used for the purposes of effecting a dedication.

30. Clause 16(6)(b) provides a power to enable dedications to exclude one or more of the general restrictions in Schedule 2, while clause 16(6)(c) enables regulations to permit the amendment of dedications which have been made so as to exclude one or more of the general restrictions.

31. Clause 16(6)(d) enables regulations to be made dealing with notification of dedications to the countryside body and access authority. The purpose is to ensure that these agencies are aware of any dedications, since they are concerned with the administration of access.

32. Clause 17(1) confers on access authorities the power to make, as respects access land (or part thereof) in their area, byelaws for the preservation of order, for the prevention of damage to the land and for securing that persons exercising the right of access avoid undue interference with the enjoyment of the land by others. This is similar to the byelaw-making powers in, for example, section 90(1) of the National Parks and Access to the Countryside Act 1949 and section 41(1) of the Wildlife and Countryside Act 1981. An access authority is required to consult the relevant countryside body before making any byelaws. Any byelaws made are not to interfere, inter alia, with the exercise of any public right of way or with any authority having under an enactment functions relating to the land over which the byelaws apply. The procedure for making these byelaws will be that applicable under sections 236 to 238 of the Local Government Act 1972. The purpose of the power in clause 17 is to give access authorities the flexibility and discretion to make byelaws over areas where access has given rise to specific problems, perhaps due to large numbers of the public visiting a particular site.

CHAPTER II: EXCLUSION OR RESTRICTION OF ACCESS

CLAUSE 21: EXCLUSION OR RESTRICTION AT DISCRETION OF OWNERS AND OTHERS

33. Under clause 21 an "entitled person" may exclude or restrict access for up to 28 days in any year. Aside from the owner of the land, "entitled person" is defined by clause 21(3) as covering "any other person having an interest in the land and falling within a prescribed description." "Interest" is defined widely (clause 41(1)) to include rights over land under an agreement or licence, sporting rights and rights of common. Where the Secretary of State or the NAW make such regulations, he or it must provide that where there are two or more entitled persons having different interests in relation to the land, the total number of days on which access may be excluded or restricted does not exceed 28 days: clause 21(5).

34. Clause 21(7) provides that regulations may be made varying the days stipulated in clause 21(6) on which discretionary exclusions and restrictions under clause 21(1) are not permitted. These are weekends, Christmas Day, Good Friday and any bank holiday. The purpose of this power is to enable modifications to be made if experience shows this to be necessary.

CLAUSE 29: EXCLUSION OR RESTRICTION OF ACCESS IN CASE OF EMERGENCY

35. Clause 29(1) provides that regulations may be made so that, in an emergency, the relevant authority (ie. the countryside bodies, National Park authority or, in certain cases, the Forestry Commissioners) may direct that access is to be restricted or excluded under clauses 22 to 24 for a period of up to three months.

36. The power to provide for emergencies is supplemented by clause 29(2), which enables regulations under clause 29 to apply any of the preceding provisions in Chapter II with modifications to a direction made in response to an emergency. For instance, the Secretary of State or NAW could modify clause 25(1) in this application so as to permit variation of a direction in an emergency without consulting the original applicant or his successor. The power will enable the exact modifications to be amended as experience shows what is needed in such situations.

CLAUSE 30: REGULATIONS RELATING TO EXCLUSION OR RESTRICTION OF ACCESS

37. Clause 30(1) provides that the Secretary of State and the NAW may make regulations on a series of matters all relating to the exclusion or restriction of the right of access. Those matters are set out in subsection (1)(a) to (m).

38. Clause 30(1)(a) and (c) deal with notice to be given to the relevant authority. Paragraph (a) enables regulations providing for the giving of notice of discretionary restrictions or exclusions to the relevant authority. Paragraph (c) enables regulations to provide, in the case of other exclusions and restrictions, as to the giving of notice of the period during which the restriction or exclusion will be in force. This will be necessary in cases where the direction by the relevant authority leaves the determination of the actual period to the discretion of the applicant, a specified person or a person authorised by the Secretary of State.

39. Restrictions or exclusions for land management or for the avoidance of fire or danger to the public may be made following application by a person interested in the land (clauses 22(1) and 23(3)). Clause 30(1)(b) provides that regulations may address the timing of such applications and the procedure governing their submission. Clause 30(1)(d) enables the form of any notice or application under Chapter II to be prescribed.

40. Clause 30(1)(e) enables regulations to make provision for restricting applications from commoners for directions under Chapter II. It may be desired, for example, to provide for a minimum proportion of the commoners to be required to join in any application for a direction.

41. Clause 30(1)(f) permits regulations to be made covering the requirements to be met as regards consultation on exclusions or restrictions. Such requirements may apply to consultation undertaken by relevant authorities and the Secretary of State, whether the consultation is pursuant to a duty imposed under Chapter II or not.

42. Subsection (1)(g) of clause 30 provides that regulations may be made regarding the giving of directions by relevant authorities and the Secretary of State. Subsection 1(h) provides a similar general power to regulate notifications by relevant authorities and the Secretary of State of decisions under Chapter II, for example, a decision as to whether to give a direction restricting or excluding access on an appeal.

43. Subsection (1)(i) of clause 30 is a power to make regulations addressing the steps to be taken to inform the public of any restrictions or exclusions on the right of access over land. A requirement to inform the public may be placed upon persons interested in the land, and on the relevant authorities, the Secretary of State, and the relevant advisory bodies specified in clause 24(6), depending on the purpose of the restriction or exclusion. It is clearly in the interests of both users and landowners that the public are as fully informed as possible of any exclusions or restrictions. Specific reference is made in clause 30(1)(i) to the display of notices, but it is envisaged that other methods will be required, such as newspaper notices and the Internet.

44. Subsection (1)(j) of clause 30 enables regulations to be made in connection with reviews that must be conducted where exclusions or restrictions having long term effect have been made (see clauses 25(2) and 26(4)). The purpose of the review is to ensure that such exclusions or restrictions remain appropriate over time. This power will allow a procedural framework to be established for such reviews, covering aspects such as consultation and publicity. Such regulations may include provision applying appeals provisions in Chapter II to reviews with such modifications as are necessary (clause 30(2)).

45. Subsections (1)(k) to (m) of clause 30 deal with appeals. They provide that regulations may be made regarding the manner and form by which appeals are brought, advertising and the manner of consideration of appeals respectively. Clause 28(5) applies clauses 7 and 8 (and Schedule 3) to these appeals in the same way that those provisions apply to appeals regarding maps. The power is the same as that in respect of maps under clause 11(2)(h) to (j).

CHAPTER III: MEANS OF ACCESS

CLAUSE 36: APPEALS RELATING TO NOTICES

46. A right of appeal is provided under clause 36 against a notice served under clause 34(3) or 35(1) on an owner or occupier in respect of means of access to access land. Provision for regulations to be made about the conduct of appeals is contained in clause 36(6), similar to the provision in relation to appeals on maps under clause 11(2)(h) to (j) and in relation to appeals in respect of exclusions or restrictions under clause 30(1)(k) to (m).

POWERS IN PART II OF THE BILL

PART II: PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC

47. Part II relates primarily to the reform and improvement of the law regarding rights of way in England and Wales. Part II includes: the introduction of a new category of highway - 'restricted byway' - which will replace the current category of 'road used as a public path'; a cut-off date for the recording of certain rights of way on definitive maps and the extinguishment of those not so recorded by that date; a new right for owners and occupiers to apply to a council for an order to divert or stop up a footpath or bridleway over their land, and to appeal against refusal; and stronger measures to deal with obstructions on highways.

48. In general, where a power to make orders or regulations is conferred on the Secretary of State, it is conferred on the NAW as respects Wales. The power taken in clause 48 is exercisable as respects both England and Wales by the Secretary of State.

49. The textual amendments of the Highways Act 1980 ("HA 1980") and of the Wildlife and Countryside Act 1981 ("WCA 1981") do not expressly refer to the NAW. In general, existing functions of the Secretary of State under those Acts were transferred to the NAW by the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672). Clause 73 of the Bill provides that the references in Schedule 1 to that Order to the HA 1980 and the WCA 1981 are to be treated as referring to the relevant Act as amended by the Bill. So wherever powers are conferred on the Secretary of State by textual amendments of either of those Acts, clause 73 ensures that as respects Wales the power is exercisable by the NAW.

50. All regulation-making powers conferred by the Bill on the Secretary of State or the NAW are exercisable by statutory instrument. All order-making powers conferred on either of them are also exercisable by statutory instrument, with the exception of the powers to make orders stopping up or diverting highways that are conferred by virtue of the amendments of the HA 1980 in Schedule 6. In the case of regulations and orders made under provisions inserted in the HA 1980, it is section 325(1) of the HA 1980 as amended by paragraph 13 of Schedule 6 that produces this result.

51. Except in the case of regulations under clause 48 and orders under subsection (1)(a) of the new section 118B inserted in the HA 1980 by paragraph 4 of Schedule 6 (which are discussed respectively at paragraphs 56 to 58 and 79 below), orders or regulations made by statutory instrument are subject to the negative resolution procedure. In the case of regulations made under provisions inserted in the HA 1980, it is section 325(2) of the HA 1980 that produces this result. The negative resolution procedure is considered the appropriate level of Parliamentary scrutiny where there is a clear indication on the face of the Bill of the scope of the regulations or orders and where powers are being taken for either technical or administrative purposes.

52. The Government believes that a higher level of scrutiny is appropriate in respect of clause 48, where the Secretary of State will have the power by regulations to make amendments to existing legislation in relation to restricted byways (see further paragraphs 56 to 58 below).

Public Rights of Way and Definitive Maps and Statements

CLAUSES 43-44: RESTRICTED BYWAYS

53. By way of background, clause 43(2) provides that all rights of way which immediately before the commencement of clause 43 were shown on definitive maps and statements as roads used as public paths (RUPPs) are to be treated as shown as restricted byways. This new category is defined in clause 44(4) and, in essence, is a highway over which there are public rights of way on foot, on horseback and by vehicles other than mechanically propelled vehicles. These rights of way are together referred to in the Bill as restricted byway rights.

54. Clause 44(8) relates to the power under subsection (6) of clause 77 to include saving and transitional provisions in commencement orders under subsection (3) of that section. Its effect is that, if that power is exercised so as to allow a way to be reclassified as a footpath or bridleway after restricted byway rights have been created over it by clause 44(1), the new rights which are inconsistent with the amended classification will be extinguished. For example, provision is likely to be needed to give effect to orders under section 54 of the WCA 1981 which reclassify RUPPs as footpaths or bridleways and which are confirmed after commencement.

CLAUSE 47: AMENDMENTS RELATING TO DEFINITIVE MAPS AND STATEMENTS AND RESTRICTED BYWAYS

55. These amendments are contained in Schedule 5 to the Bill. The powers they insert or apply are described below at paragraphs 69 to 75.

CLAUSE 48: RESTRICTED BYWAYS: POWER TO AMEND EXISTING LEGISLATION

56. Clause 48 confers on the Secretary of State a power to make regulations as to the effect in relation to restricted byways of any "relevant provision" which relates to highways or highways of a particular description, or to things done on or in connection with highways or highways of a particular description, or to the creation, stopping up or diversion of highways or highways of a particular description. A "relevant provision" is defined as any provision contained in an Act passed before or in the same Session as the Bill or in any subordinate legislation made before the passing of the Bill. The regulations may disapply a relevant provision which would otherwise apply in relation to restricted byways or ways shown as restricted byways - for example, where a relevant provision applies in relation to carriageways of a description that would include restricted byways. Alternatively the regulations could provide for such a provision to apply with modification. They could also apply, with or without modification, a relevant provision which would not otherwise apply - for example a relevant provision applying in relation to footpaths and bridleways. The clause also gives a power to make consequential amendments that arise out of clauses 43 to 46 or out of regulations made under clause 48(1)(a).

57. It is necessary to take this power because of the numerous provisions that relate to highways. The creation of a new class of highway (that is, restricted byways) will require detailed examination of existing legislation applicable to highways to determine which of those provisions should apply (if any) and in what manner. For example, there are a number of different provisions relating to the diversion of particular classes of highways and it may be appropriate to apply only some of those provisions to restricted byways.

58. In view of the importance that Parliament attaches to the power to amend primary legislation in this manner, the Government believes that a higher level of scrutiny is appropriate. Clause 48(4) provides for the affirmative resolution procedure to apply to regulations made under this clause, so that any regulations must be laid before and approved by each House of Parliament. Only the Secretary of State may make regulations under this power.

CLAUSE 50: EXCEPTED HIGHWAYS AND RIGHTS OF WAY

59. Clause 49 of the Bill provides for the extinguishment of certain rights of way which are not recorded on a definitive map and statement by "the cut-off date" as defined by clause 52.

60. Clause 50(1)(d) and (e) and 50(5)(c) and (d) provides powers to make regulations excluding specified descriptions of footpaths or bridleways and specified footpaths or bridleways from the operation of clause 49(1) and excluding specified descriptions of public rights of way and specified land from the operation of clause 49(3). The current exclusions in clause 50 may not cover all those highways or rights of way which it is desirable to save from extinguishment under the cut-off provisions. For example, there are powers to suspend temporarily rights of way and where this is done, it may not be possible to record them on a definitive map. This power is intended to provide flexibility to deal with such circumstances.

CLAUSE 52: CUT-OFF DATE FOR EXTINGUISHMENT

61. Clause 52(1) defines the cut-off date as 1 January 2026, but clause 52(2) enables the Secretary of State or the NAW to make regulations prescribing a later cut-off date. There may be different dates for different areas, but any date is to be no later than 1 January 2031 except in the case of those areas set out in clause 52(4)(a) and (b). The latter areas are the Isles of Scilly and those areas in respect of which sections 27 to 38 of the National Parks and Access to the Countryside Act 1949, until their replacement by Part III of the WCA 1981, did not, or did not always, require a definitive map to be prepared. For these areas the cut-off date may be extended beyond 1 January 2031. For instance, some local authorities may not have begun producing definitive maps for parts of their areas until 1983 (the commencement of Part III of the WCA 1981) and it is therefore appropriate to allow for the cut-off date to be extended in these cases. This is because for these areas, local authorities have had less time to record rights of way than where there was a continuing obligation to do so under the National Parks and Access to the Countryside Act 1949.

62. This clause also enables regulations to be made providing for transitional provisions or savings in connection with the operation of clauses 49 (extinguishment of unrecorded rights of way) and 51 (bridleway rights over ways shown as bridleways). In particular, regulations can be made relating to orders modifying definitive maps and applications for such orders.

CLAUSES 53-55: CREATION, STOPPING UP AND DIVERSION OF PUBLIC RIGHTS OF WAY

63. Clause 53 introduces Parts I and II of Schedule 6 to the Bill which make amendments to the HA 1980 and make consequential amendments to other Acts. The powers they insert or apply are described below at paragraphs 76 to 106.

CLAUSES 56 - 57: RIGHTS OF WAY IMPROVEMENT PLANS

64. Clause 56 requires all local highway authorities to prepare and publish rights of way improvement plans. Clause 56(1)(c) and 56(2)(d) enable the Secretary of State and the NAW to make directions regarding the assessment of rights of way and the contents of rights of way improvement plans.

65. Clause 57 sets out the persons or bodies whom a local highway authority will be required to consult before preparing or reviewing a rights of way improvement plan. Clause 57(1)(f) enables regulations to be made prescribing further persons whom the local highway authority shall be under an obligation to consult.

CLAUSE 59: ENFORCEMENT OF DUTY TO PREVENT OBSTRUCTION

66. Clause 59 inserts a new section 130A into the HA 1980. This new section will enable any person to serve notice on the relevant local highway authority requesting it to secure the removal of specific types of obstruction from a right of way. It is a method whereby a person can require a local highway authority to comply with its duty to prevent obstructions. The new section 130A(3)(b) provides that the Secretary of State and the NAW may prescribe certain descriptions of obstructions in respect of which such notices may be served. For instance, the current provisions do not extend to abandoned vehicles, but these could be prescribed once section 130A comes into force. The power is, however, circumscribed by section 130A(4) which sets out certain classes of obstruction that are excluded from the ambit of the section. Section 130A(7) provides that notices served either by a person or by a local highway authority are to be in such a form and contain such information as may be prescribed by regulations.

CLAUSE 64: ERECTION OF STILES, ETC, AND NEEDS OF PERSONS WITH MOBILITY PROBLEMS

67. Clause 64 inserts new subsections (2A) and (2B) into section 147 of the HA 1980. The new subsection (2B) provides for guidance to be issued by the Secretary of State and the NAW to competent authorities (which in most cases will be the local highway authority) as to matters to be taken into account when authorising the erection of stiles, gates or other works on footpaths or bridleways under section 147(2). These authorities will be under an obligation to have regard to any such guidance.

CLAUSE 65: REPORTS ON FUNCTIONS RELATING TO RIGHTS OF WAY

68. Clause 65(1) provides that the Secretary of State and the NAW may make regulations specifying descriptions of local highway authorities that will be required to publish reports on the performance of any of their functions relating to local rights of way. Any such regulations may prescribe the information to be given in such reports and how and when the reports are to be published. This power will enable the Secretary of State or the NAW to focus attention on particular highway authorities which are not adequately performing their rights of way functions.

SCHEDULE 5

Definitive Maps and Statements and Restricted Byways:

AMENDMENTS OF PART III OF THE WILDLIFE AND COUNTRYSIDE ACT 1981

69. Paragraph 2 of Schedule 5 to the Bill inserts a new section 53A into the WCA 1981. This new section relates to orders that effect changes to rights of way and allows for provision to be made in these orders making consequential modifications to a definitive map. So, for example, where an order is made to divert a highway, section 53A authorises that order to contain provisions modifying the definitive map to reflect the effect of the diversion.

70. Section 53A(1) provides that the Secretary of State and the NAW may by regulations prescribe the description of orders to which the new section 53A is to apply and section 53A(8) provides that the Secretary of State and the NAW may by regulations provide that any procedural requirement in respect of the making or coming into operation of such orders shall not apply or shall apply with modifications. There are numerous types of orders, such as diversion orders or stopping up orders made under various powers for which there are different procedural requirements. The power is being taken so that in each case, appropriate modifications can be made to the procedural requirements to take account of the fact that modification to a definitive map in these cases will be a purely administrative step. For example, it may be inappropriate for the notice of the general effect of an order under section 118 of the HA 1980 (see paragraph 1(3) of Schedule 6 to the HA 1980) to refer to the effect of that part of the order modifying a map. This power applies only to so much of the order as contains provision included by virtue of section 53A(2) - that is, that part which modifies a definitive map. Currently, when orders are made affecting rights of way, the surveying authority is required to make another order modifying the definitive map. This new power enables orders modifying rights of way to achieve modification of the definitive map by means of the same order.

71. Paragraph 2 also inserts a new section 53B into the WCA 1981. Section 53B(1) requires surveying authorities (effectively, local highway authorities) to keep registers of applications made under section 53(5) for orders modifying a definitive map. Section 53B(3) and (4) enable regulations to be made as to the manner in which registers are to be kept and the information which they should contain.

72. Paragraph 4 of Schedule 5 to the Bill inserts a new section 54A into the WCA 1981. Section 54A(1) provides that it will not be possible after the "cut-off date" defined in section 54A(2) to make orders modifying a definitive map and statement so as to show as a byway open to all traffic any way which is not shown in the map and statement as a highway of any description.

73. Section 54A(2) defines the cut-off date as 1 January 2026, but section 54A(3) enables the Secretary of State and the NAW to substitute, by regulations, a later cut-off date. There may be different dates for different areas. The power is constrained in that the cut-off date cannot be extended beyond 1 January 2031 except in relation to the Isles of Scilly and those areas in respect of which sections 27 to 38 of the National Parks and Access to the Countryside Act 1949, until their replacement by Part III of the WCA 1981, did not or did not always, require a definitive map to be prepared. The same considerations apply here as apply to the corresponding provision of clause 52. Section 54A(3) also enables regulations to be made containing any transitional provisions or savings which appear to be necessary or expedient in relation to the new section 54A(1). In particular, it allows for such provision to be made, for example, in relation to applications for orders made under section 53(2) and orders made under that section but not confirmed by the cut-off date. Section 54A(7) provides that, where it appears to the Secretary of State or the NAW that any provision in Part III of the WCA 1981 (that is, the Part relating to definitive maps and statements) can have no further application as a result of the new section 54A, they may by order make such amendments or repeals to Part III as appear to be necessary or expedient. Paragraphs 61 to 62 of this memorandum are also relevant.

74. Paragraph 6 of Schedule 5 to the Bill inserts, inter alia, new subsections (3A) and (4A) into section 56 of the WCA 1981. Section 56(3A) provides that the Secretary of State and the NAW may by regulations prescribe the manner in which the "relevant date" is to be calculated for the purposes of orders which contain provisions arising from the new section 53A(2).

75. Paragraph 7 of Schedule 5 to the Bill inserts new subsections (6A) and (6B) into section 57 of the WCA 1981. Section 57(6A) provides that the Secretary of State and the NAW may prescribe in regulations that section 57(5) and (6) is to apply to specified types of documents relating to orders to which the new section 53A applies. Section 57(6B) provides that the regulations may require any such document to be prepared by a surveying authority and may prescribe the form that document shall take.

SCHEDULE 6

AMENDMENTS RELATING TO CREATION, STOPPING UP AND DIVERSION OF HIGHWAYS:

AMENDMENTS RELATING TO CREATION, STOPPING UP AND DIVERSION OF PUBLIC RIGHTS OF WAY

76. Paragraph 3 of Schedule 6 to the Bill inserts a new section 118ZA into the HA 1980. Section 118ZA(1) entitles owners and occupiers of certain types of land to apply to a council, in respect of a footpath or bridleway located on their land, for a public path extinguishment order under section 118 of the HA 1980. Section 118ZA(2) provides that the Secretary of State and the NAW may prescribe in regulations the form of the application, the scale of the map which is to accompany such an application and any other applicable information to be provided. Section 118ZA(3) provides that regulations may also provide for a prescribed charge to be payable on the making of such applications and for other charges to be payable if an extinguishment order is made.

77. Section 118ZA(8) provides that a council shall notify applicants of its decision and the reasons for the decision. Section 118ZA(8)(b) provides that the Secretary of State and the NAW may prescribe in regulations any other persons on whom a copy of such notice shall be served.

78. Section 118ZA(10) enables regulations to be made prescribing the circumstances in which a new map may be substituted for the map originally submitted with an application.

79. Paragraph 4 of Schedule 6 to the Bill inserts a new section 118B into the HA 1980. Section 118B(4) gives local highway authorities the power to make extinguishment orders (the effect of which is to close a public right of way) either for crime prevention purposes in designated areas or for the protection of pupils and staff at schools. Extinguishment orders made under the new section 118B(4) are referred to as "special extinguishment orders". This section provides that the areas in respect of which special extinguishment orders may be made are to be designated by order by the Secretary of State or the NAW. As currently drafted, a designation order made by the Secretary of State under the new section 118B(1)(a) is not subject to any Parliamentary procedure. It is intended to table the necessary amendments in the Committee stage so that the power to make such orders will be subject to the negative resolution procedure.

80. The intention is that the powers should be targeted at areas which are vulnerable to high levels of crime against property from adjoining rights of way: for example, certain high density residential areas where criminals gain access from back alleys.

81. Section 119B(4) gives local highway authorities the power to make diversion orders (known as "special diversion orders") on similar grounds.

82. Section 118B(9) provides that the Secretary of State and the NAW may by regulations prescribe the form in which a special extinguishment order is made and the scale of the accompanying map.

83. Section 118B(10) applies Schedule 6 of the HA 1980. Schedule 6 to the 1980 Act gives the Secretary of State and the NAW power to make regulations, and in some cases give directions, in respect of procedural matters relating to the making, confirmation, validity and the coming into effect of certain orders in respect of highways.

84. Section 118C(2) applies section 118ZA(2) to (11) (which is inserted by the Bill). Please refer to paragraphs 76 to 78 for a description of the regulation making powers contained in section 118ZA(2) to (11).

85. Paragraph 6 of Schedule 6 to the Bill inserts a new section 119ZA into the HA 1980. This new provision gives owners and occupiers of certain types of land the right to apply to a council for a public path diversion order under section 119 of the HA 1980 as respects a footpath or bridleway that crosses their land. Section 119ZA(4) enables the Secretary of State and the NAW by regulations to prescribe the form of any such application and the scale of the map which must accompany the application. Section 119ZA(5) enables regulations to be made prescribing charges to be payable on the making of such applications and for other charges to be payable if a public path diversion order is made.

86. Section 119ZA(9) provides that a council shall notify the applicant of its decision and the reasons for it. Section 119ZA(9)(b) provides that the Secretary of State and the NAW may prescribe by regulations any other persons on whom a copy of such notice shall be served.

87. Section 119B(12) provides that the Secretary of State and the NAW may by regulations prescribe the form in which a special diversion order is made and the scale of the accompanying map.

88. Section 119B(13) applies Schedule 6 of the HA 1980. The discussion of Schedule 6 appears at paragraph 83.

89. Section 119B(14) applies section 27 of the HA 1980, with amendments, to special diversion orders. The purpose of section 27 is to provide for cases where, once a diversion order has been made, it is necessary to carry out works to land to bring that land into a condition fit for use as a particular category of right of way. Section 27 (as amended) applies to special diversion orders only in cases where the order is made by the Secretary of State or the NAW using their default powers. In such cases, section 27(4) provides that the Secretary of State or the NAW may direct which authority is to carry out any necessary works.

90. Paragraph 7 of Schedule 6 to the Bill inserts a new section 119C into the HA 1980. Under the new section 119B(1)(b), local highway authorities are given the power to make special diversion orders in respect of highways which cross land occupied for the purposes of a school and in respect of which they are satisfied that a diversion order is expedient for the purposes of protecting pupils and staff. The new section 119C entitles proprietors of such schools to apply to the relevant highway authority for the making of a special diversion order under section 119B(1)(b). Section 119C(4) applies section 119ZA(3) to (12) to any such applications. The discussion of section 119ZA appears at paragraphs 76 to 78. Section 119C(4) provides that regulations made under section 119ZA by virtue of section 119C(4) may make different provision for the purposes of this section.

91. Section 119D(10) applies Schedule 6 of the HA 1980. The discussion of Schedule 6 appears at paragraph 83.

92. Paragraph 7 of Schedule 6 to the Bill also inserts new sections 119D and 119E into the HA 1980. Section 119D entitles local highway authorities, on an application made by the Nature Conservancy Council (as respects England) and by the Countryside Council for Wales (as respects Wales), to divert highways if they are satisfied that public use of the highway is causing or is likely to cause significant damage to a site of special scientific interest (SSSI). Such orders are referred to as "SSSI diversion orders". Section 119E(1) provides that the Secretary of State and the NAW may by regulations prescribe the form of any such application and the scale of the map which is to accompany the application. Section 119E(2) requires the conservation body making the application to notify certain persons and the Secretary of State and the NAW may prescribe in regulations the form of any such notice and the persons whom the conservation body shall notify.

93. Section 119E(5) provides that the Secretary of State and the NAW may by regulations prescribe the form of any such SSSI diversion orders and the scale of the map which is to accompany such orders.

94. Section 119E(6) applies section 27 of the HA 1980 to SSSI diversion orders in exactly the same manner as that described for section 119B(14) above.

95. Paragraph 9 of Schedule 6 to the Bill makes consequential amendments to section 121 of the HA 1980. Section 121(2) (as amended) applies section 28 of the HA 1980. Section 28 provides for the payment of compensation for loss caused by an extinguishment or diversion order and section 28(2) provides that a claim for compensation is to be made in such time and in such manner as may be prescribed by the Secretary of State and the NAW in regulations.

96. Paragraph 10 of Schedule 6 to the Bill inserts new sections 121A to 121E into the HA 1980. Section 121A(1) provides that the Secretary of State and the NAW may by regulations make provision as respects applications under the new sections 118ZA, 118C, 119ZA and 119C. The manner in which this power will be used is set out in section 121A(1)(a) to (f), starting with regulations requiring applicants to issue a certificate as to their interests in or rights in or over the land to which the application relates and the purpose for which the land is used.

97. This new subsection also entitles the Secretary of State and the NAW to make regulations in relation to applications for an order, such as service of notices, requirements in respect of the advertisement of notices and in respect of the remission or refunding of any prescribed charge in prescribed circumstances.

98. Section 121B requires councils to keep registers in respect of applications made under the new sections 118ZA, 118C, 119ZA and 119C. Section 121B(1), (2), (3) and (4) provides that the Secretary of State and the NAW may by regulations prescribe the manner in which such registers are to be kept and the information which they are to contain.

99. Section 121D gives applicants a right of appeal, inter alia, in respect of a council's refusal to make or confirm orders. Section 121E(7) provides that the Secretary of State and the NAW may by regulations make further provisions in respect of such appeals. Section 121E(8) sets out a non-exhaustive list of matters which such regulations may cover. For example, regulations may make provision in respect of notices and advertisements of appeal and of payment by the applicant of expenses incurred by the Secretary of State or the NAW in preparing draft orders.

100. Section 121E(9) provides a power to prescribe by regulations which councils are to be treated automatically for the purposes of section 28 of the HA 1980 as having been nominated by the Secretary of State or the NAW under section 28(3).

101. Section 121E(1)(b) requires the Secretary of State and the NAW to give notice, in accordance with paragraph 1(2) of Schedule 6 to the HA 1980, of a draft of the order they propose to make. Paragraph 1(3)(b)(iv) of Schedule 6 to the HA 1980 provides that in respect of notices required to be given under paragraph 1(2), the Secretary of State and the NAW may make regulations prescribing any additional persons on whom a copy of the notice is to be given.

102. Section 121E(10) applies section 121A(2) to (4). The discussion of section 121A appears at paragraphs 96 to 97.

103. Paragraph 11 of Schedule 6 to the Bill inserts new sections 135A and 135B into the HA 1980. Section 135A gives occupiers of land the right to temporarily divert any footpaths or bridleways located over their land where works of a prescribed description are likely to cause danger to users of the right of way. The works to which this section applies are to be prescribed by the Secretary of State and the NAW by regulation. Section 135A(5)(a) and (b) requires a person proposing to make a temporary diversion to notify certain persons beforehand and advertise the diversion in the local press beforehand. Section 135A (5)(c) requires that person to display notices of the diversion and confers power on the Secretary of State and the NAW to prescribe by regulations how, when and where such notices are to be displayed. Section 135A(7) provides that the Secretary of State and the NAW may by regulations prescribe the form and content of such notices and advertisements under subsection (5).

104. Paragraph 13 of Schedule 6 to the Bill amends section 325 of the HA 1980. The amendments ensure that special extinguishment orders, special diversion orders and SSSI diversion orders made by the Secretary of State or the NAW are not required to be made by statutory instrument. The amendments also provide that rail crossing extinguishment orders under section 118A of the HA 1980 and rail crossing diversion orders under section 119A of that Act (which at present are required to be made by statutory instrument if made by the Secretary of State or the NAW) are no longer required to be so made.

105. Paragraph 14 of Schedule 6 to the Bill makes consequential amendments to section 326 of the HA 1980.

106. Paragraph 17 of Schedule 6 to the Bill makes consequential amendments to Schedule 6 to the HA 1980. A new paragraph 2ZA is inserted into Schedule 6 to the 1980 Act. Paragraph 2ZA(1) requires an authority which has made a diversion order under sections 118ZA, 118C, 119ZA or 119C to decide whether to confirm the order if it is unopposed and if the order is opposed, the authority is then under a duty to submit the order to the Secretary of State or the NAW for confirmation. Paragraph 2ZA(2) requires the authority to give an applicant notice of their determination and the reasons for it and provides that the Secretary of State and the NAW may by regulations prescribe any other persons on whom a copy of such notice should be given.

POWERS IN PART III OF THE BILL

PART III: NATURE CONSERVATION AND WILDLIFE PROTECTION

107. Part III of the Bill provides greater protection for wildlife and natural features by improving protection for Sites of Special Scientific Interest ("SSSIs") in England and Wales and strengthening the enforcement of wildlife legislation. The provisions enable the conservation agencies in England and Wales (the Nature Conservancy Council and the Countryside Council for Wales) to impose permanent restrictions to prevent damaging operations on SSSIs. There will also be a power for the conservation agencies to secure the management of an SSSI. The Bill gives various rights of appeal to owners and occupiers of land who are affected by these provisions.

108. Paragraph 1 of Schedule 8 to the Bill substitutes new provisions for section 28 of the Wildlife and Countryside Act 1981. Section 28D in paragraph 1 of Schedule 8 gives an owner or occupier a right of appeal against -

(a) the refusal of consent by the Nature Conservancy Council for the carrying out of operations likely to damage the features of special interest on a site of special scientific interest;

(b) the imposition of conditions on such a consent;

(c) the modification of such a consent; and

(d) the withdrawal of such a consent.

109. Section 28D(6) provides that the Secretary of State may by regulations make provision for notices of appeal, the required supporting documentation and also the manner in which appeals are to be brought and considered. Section 28D(7) provides that these regulations shall be made by statutory instrument subject to the negative resolution procedure.

110. Section 28J(8) provides that the Secretary of State may make regulations concerning appeals made by persons as respects management notices served by the Nature Conservancy Council under section 28H requiring the carrying out of works (or the doing of such other things as are specified) in respect of an SSSI. These regulations may in particular provide for the period within which and the manner in which appeals are brought against management notices, as well as the manner in which they shall be considered. As in the case of regulations under section 28D(6), they are to be made by statutory instrument subject to the negative resolution procedure: section 28D(9).

111. The Government considers that the negative resolution procedure is appropriate for both of these regulation-making powers. They are akin to those taken with respect to maps in clause 11(1)(h) to (j).

CLAUSE 71(2): ENFORCEMENT OF WILDLIFE LEGISLATION

112. Clause 71(2) extends the power to make regulations under section 2(2) of the European Communities Act 1972 ("ECA 1972") for the purpose of implementing the instruments mentioned in subsection (3) of the clause. Under that power as extended, regulations implementing those instruments will be able to create offences punishable on summary conviction with imprisonment for up to six months. This overrides paragraph 1(1)(d) of Schedule 2 to the ECA 1972 under which such regulations cannot create offences punishable on summary conviction with imprisonment for more than three months. The extension of the power under section 2(2) of the ECA 1972 means that such regulations can create offences punishable in the same way as similar offences under Part I of the WCA 1981, penalties for which are increased by paragraph 10 of Schedule 10 to the Bill to include imprisonment for up to six months on summary conviction.

113. The power to make regulations under section 2(2) of the ECA 1972 is exercisable by the Minister designated under section 2(2), in relation to the implementation of the instruments mentioned in clause 71(3) - the Secretary of State for the Environment, Transport and the Regions. Under paragraph 2 of Schedule 2 to the ECA 1972 such regulations must be made by statutory instrument which, if made without a draft having been approved by resolution of each House of Parliament, is subject to annulment in pursuance of a resolution of either House.

POWERS IN PART IV OF THE BILL

PART IV: MISCELLANEOUS AND SUPPLEMENTARY

CLAUSE 74: ISLES OF SCILLY

114. Clause 74(2) gives the Secretary of State the power, after consultation with the Council of the Isles of Scilly, to make an order applying to the Isles any provision of Part I or contained in clauses 54 to 57 and 65, subject to such modifications as may be specified. The order is to be made by statutory instrument. Under section 344(3) of the HA 1980 the Secretary of State has a similar power, after consultation with the Council of the Isles of Scilly, to provide by order that provisions listed in subsection (2)(a) of that section are, subject to such modifications as may be specified, to apply in the Isles of Scilly as if those Isles were a separate county. Under section 325 of the HA 1980, any such order is to be made by statutory instrument. Clause 59 and paragraphs 1, 3 to 10 and 12 of Schedule 6 to the Bill insert provisions which will be subject to this power (by virtue of section 344(2)(a) of the HA 1980 as amended by clause 74(3)) or amend provisions already subject to it.

CLAUSE 77: COMMENCEMENT

115. Clause 77(3) provides for the Secretary of State to commence Part II on a day appointed by him in an order made by statutory instrument. Clause 77(4) enables the Secretary of State (as respects England) or the NAW (as respects Wales) to commence the remaining provisions of the Bill on an appointed day or days. Different days may be appointed for different purposes or different areas. Finally, clause 77(6) provides that any such order may contain such transitional and savings provisions as appear to the Secretary of State or the NAW to be necessary or expedient. Orders made under clause 77 are made by statutory instrument.

26 June 2000


 
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