|Countryside And Rights Of Way Bill - continued||House of Lords|
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Clauses 54 and 55: Effect of Part I of the Bill on powers to create, stop up or divert highways
113. Clause 54 gives the countryside bodies powers to apply to the Secretary of State (or National Assembly for Wales) to create public paths to provide access to access land (such as "inaccessible islands" to which there is no other practicable means of access). The countryside bodies must have regard to any rights of way improvement plan prepared by the local highway authority before applying for an order. The Secretary of State (or National Assembly for Wales) will consider such applications in deciding whether to exercise his powers under section 26 of the Highways Act 1980 (and, by virtue of subsection (2) of that section, must consult with local authorities before making an order).
114. Clause 55 prevents an authority, when exercising powers to stop up or divert highways, from regarding the existence of the new right of access to open countryside as, for example, reducing the need for the highway, the need for an alternative highway or the need to reserve a public right of way.
Clauses 56 to 58: Rights of way improvement plans
115. Clause 56 requires every local highway authority (except inner London boroughs and the Common Council of the City of London) to prepare and publish a rights of way improvement plan within 5 years of the commencement of this clause. It sets out what the plan should cover and what matters the authority should consider. It also provides for reviews of the plan at 10 yearly intervals. Subsection (6) provides for the transitional period until the reclassification of RUPPs comes into effect. It provides that the definition of local rights of way includes RUPPs until they are re-designated as restricted byways under clause 43.
116. Clause 57 sets out who should be consulted by the local highway authority in preparing the plans, the process of publishing and consulting on a plan, how the plan should be made available to the public, and the guidance to which the authority should have regard. Finally it enables local highway authorities to make plans in conjunction with district councils or National Park authorities in their area.
117. Clause 58 relates to the application of clauses 56 and 57 to Inner London. The clause allows inner London boroughs and the City of London to adopt the provisions. If they choose to adopt this provision, subsection (2)(b) provides for the due date of the first review to be changed accordingly.
Clauses 59 to 61: Removal of obstructions from highways
118. Clause 59 inserts two new sections into the Highways Act 1980 in relation to the obstruction of rights of way. New section 130A enables any person to serve notice on a local highway authority requesting them to secure the removal of certain types of obstruction from a footpath, bridleway, restricted byway, or byway open to all traffic recorded on the definitive map for which they are the highway authority. The request may lead to a requirement being imposed by the court (section 130B below). A local highway authority will not be relieved of their duty to serve appropriate notices under section 130A(5) merely because, in their view, the complainant has got any of the matters to which the notice relates wrong. For example, new sections 130A and 130B will apply only to obstructions that are without lawful authority.
119. Subsection (3) applies the new provisions to obstructions which are structures, things deposited on the highway which are causing a nuisance, and overhanging vegetation. It also gives a power to prescribe by regulation other types of obstruction to which the provisions should apply.
120. Subsection (4) excludes overall certain types of obstructions from the provisions. These include those types of obstructions for which an order under section 56 of the Highways Act 1980 can be obtained - in effect those obstructions that consist of disrepair.
121. Subsection (5) requires a highway authority on which a notice has been served to respond stating what action it intends to take over the obstruction. It also contains provisions requiring the highway authority to inform the person responsible for the obstruction that it has received a complaint. Subsection (6) recognises that the notice may relate to a lawful obstruction. In those circumstances, the person responsible may not be required to remove it.
122. New section 130B. Subsections (1) and (2) allow the person who served the notice on the highway authority to seek a magistrates' court order if they are not satisfied that the obstruction. The person must give the highway authority 5 days notice of their intention to apply to the court, but may not serve a notice until at least 2 months after serving the original notice on the authority under new section 130A.
123. Subsection (4) empowers a magistrates' court to make an order requiring the highway authority to take action to secure removal of the obstruction. Subsection (5) provides a defence for the authority if the authority: (a) shows that the status of the way as a highway is seriously disputed or that it falls outside the categories listed in section 130A(2), or (b) shows that no duty to remove the obstruction under section 130(3) of the Highways Act 1980, or (c) shows that they have any necessary arrangements in hand to secure the removal of the obstruction within a reasonable time.
124. Subsection (6) requires a court, when determining whether to award costs against an applicant where an application is dismissed, and where the highway authority relied upon any of the defences in subsection 5, to have particular regard to whether and the extent to which the highway authority had informed the applicant, prior to trial, of the defence.
125. Clause 60 inserts new section 137A into the Highways Act 1980. The new section empowers a magistrates' court on conviction of a person for the offence under section 137 of the Act (wilful obstruction of a highway) to order that person to remove the obstruction. This may be additional to, or instead of, a fine. Under the new provision, failure to comply with an order (without reasonable excuse) is an offence punishable by a fine up to level 5 on the standard scale (currently £5000).
126. Clause 61 amends section 154 of the Highways Act 1980 so as to enable local authorities to require owners and occupiers of land whose trees, shrubs or hedges overhang bridleways to the inconvenience or danger of horse riders, to remove the offending vegetation or cut it back to a suitable height for horse riders.
Clauses 62 to 65: Public Rights of Way and Road Traffic - Miscellaneous
127. Clause 62 amends the provisions in the Road Traffic Regulation Act 1984 governing the circumstances in which traffic authorities may make traffic regulation orders.
128. Section 22 of the 1984 Act gives traffic authorities a power to regulate traffic for the purpose of conserving or enhancing the natural beauty of the area, or of affording better opportunities for the public to enjoy the amenities of the area. The power is restricted to roads in England and Wales which are both outside Greater London and in or near certain designated areas, for example National Parks and Areas of Outstanding Natural Beauty. Clause 58 ensures that the power will apply similarly to all areas designated as Sites of Special Scientific Interest, and brings Greater London within the scope of the statute.
129. Clause 62 also inserts a new section 22A into the 1984 Act. The new section enables traffic authorities to make orders to control vehicular traffic on unclassified roads and byways throughout England and Wales for the purposes of conserving or enhancing the natural beauty of the area. It is made explicit that "conservation of natural beauty" in the context of both section 22 and the new section 22A, includes the conservation of flora, fauna and physical features of the landscape.
130. Clause 63 introduces Schedule 7. Paragraph 5 of Schedule 7 substitutes a new section 34 in the Road Traffic Act 1988. Section 34 prohibits the driving of motor vehicles, without lawful authority, elsewhere than on roads. The offence in section 34 is extended to cover mechanically propelled vehicles which currently may not fall within the definition of "motor vehicle", to which the current offence relates, because they may not be intended or adapted for use on roads. The offence will extend not only to footpaths and bridleways, but also to the new category of right of way, restricted byways. The offence will not extend to invalid carriages, mechanically propelled vehicles controlled by pedestrians used for cutting grass and electrically assisted pedal cycles.
131. The recording of a way on a definitive map as a footpath, bridleway, or restricted byway does not mean that higher rights might not exist over the way in question. Subsection (2) of the new section 34 provides that where a way is shown on a definitive map as a footpath, bridleway, or restricted byway, then it is presumed to carry only the rights attaching to ways of that kind unless the defendant brings forward prima facie evidence to the contrary.
132. Clause 64 amends section 147 of the Highways Act 1980 so that local authorities when authorising the erecting of stiles, gates or other works on footpaths or bridleways must have regard to the needs of people with mobility problems. It provides for the Secretary of State and the National Assembly for Wales to issue guidance on how the powers to authorise works are to be exercised.
133. Clause 65 provides for the Secretary of State and the National Assembly for Wales to make regulations requiring local highway authorities to publish reports on the performance of their functions relating to rights of way. An example might be a report on the implementation of its rights of way improvement plans. The regulations may prescribe what the reports should cover and how they should be published.
PART III NATURE CONSERVATION AND WILDLIFE PROTECTION
134. Part III of the Bill gives greater protection to wildlife and natural features by improving protection for Sites of Special Scientific Interest (SSSIs) in England and Wales and the enforcement of wildlife legislation.
135. SSSIs are areas of land notified by the conservation agencies (the Nature Conservancy Council for England and the Countryside Council for Wales) because they are of special interest arising from their flora, fauna or geological or physiographical features. The provisions enable the conservation agencies to impose permanent restrictions in place of the present temporary 4 month restrictions to prevent damaging operations on SSSIs in England and Wales. There will also be a power for the conservation agencies to secure the management of an SSSI. The Bill improves procedures for notification and denotification of SSSIs. The Bill also gives various rights of appeal to owners and occupiers of land who are affected by its provisions.
136. The Bill increases the conservation agencies' powers of entry to land and extends powers of compulsory purchase. There are increased penalties for damage to an SSSI, by owners and occupiers and by other persons.
137. The Bill places new duties on statutory undertakers and public bodies in respect of SSSIs and imposes restrictions on them when carrying out or authorising activities which affect an SSSI.
138. Sites of Special Scientific Interest were first introduced in legislation by s.23 of the National Parks and Access to the Countryside Act 1949, which required them to be notified to the local planning authority. A system of controls was introduced by the current Wildlife and Countryside Act 1981 ("the 1981 Act").
139. Under s.28 of the 1981 Act, SSSIs are established by notification by the conservation agencies. Owners and occupiers are then required to notify the agency if they intend to carry out an operation on a site which is likely to damage the features of special interest (these operations are listed by the agency when notifying the site). The agency may consent to the work, or has 4 months to negotiate a management agreement for the land (including financial payments). If agreement is not reached at the end of the 4 month period (and if this period is not extended by agreement or by a nature conservation order, where appropriate, under s.29), the owner or occupier may undertake the proposed operation. The 1981 Act does not enable the conservation agencies to require owners and occupiers to manage an SSSI for its nature conservation interest.
140. Proposals for strengthening the legislation were published in Sites of Special Scientific Interest - Better protection and management10. Over 550 responses were received, generally in support of the proposals. Following consideration of the responses to consultation, a framework document was published setting out proposals for legislation11. This Bill gives effect to those proposals.
Commentary on clauses
141. Clause 66(1) introduces Schedule 8, which amends Part II of the 1981 Act to improve the protection of sites of special scientific interest (SSSIs). Schedule 8 is explained in more detail at paragraphs 147 to 166 below.
142. Clause 66(2) relates to section 15(2) of the Countryside Act 1968, which enables the conservation agencies to enter into agreements with owners and occupiers of land adjacent to an SSSI for the purposes of conserving the special features of the SSSI. This clause extends the agencies' power so that they can enter into agreements with owners or occupiers of other land (not necessarily within or adjacent to an SSSI), for those purposes. An example would be for the protection of a water supply some way from the SSSI.
143. Clause 66(3) inserts a new s.15A into the Countryside Act 1968. The new section gives the conservation agencies power to compulsorily purchase the land referred to in the above paragraph. There are safeguards for the owner of the land being compulsorily acquired. The compulsory purchase cannot take place unless the conservation agency are satisfied they cannot reach an agreement for the conservation of the SSSI or unless there has been a breach of an agreement for its conservation. The new section also provides that, having compulsorily acquired the land, the conservation agencies can manage it themselves or dispose of it on terms providing that another person will conserve the features of the SSSI.
144. Clause 67. The 1981 Act provisions relating to SSSIs apply to England, Wales and Scotland while the amendments made to those provisions by this Bill will apply only to England and Wales (SSSIs are a devolved matter). This clause introduces Schedule 9, Part I of which makes the necessary consequential amendments in relation to provisions which will in future apply only in Scotland. Part II of Schedule 9 makes various amendments in relation to other legislation, mainly to introduce the term "site of special scientific interest" (now defined in a new definition to be inserted into s.52(1) of the 1981 Act by paragraph 4(2) of Schedule 8 to the Bill).
145. Clause 68 imposes on the Secretary of State a duty to notify the conservation agencies of sites designated under the 1971 Ramsar Convention on Wetlands of International Importance. Under this Convention, adopted at Ramsar in Iran, the United Kingdom is required to designate wetlands of international importance especially in relation to waterfowl, and generally to promote the wise use of wetlands. The conservation agencies are also required to notify owners and occupiers, and certain statutory bodies of the designation.
146. Clause 69. Limestone pavements are rare and exceptional areas of fissured limestone. They are protected under section 34 of the 1981 Act which enables orders to be made to prevent the limestone from being disturbed or removed. This clause amends the fines for damage to limestone pavements, to match increased penalties (of up to £20,000) that may be imposed for damaging SSSIs.
147. Clause 70 amends section 51 of the 1981 Act which provides for powers of entry for giving proper effect to the nature conservation provisions in the Act. This clause extends the conservation agencies' powers of entry onto land (which is not limited to the potential or actual SSSI) for a range of specified purposes. These include to assess whether land should be notified as an SSSI; to formulate a scheme for the management of an SSSI in order to conserve its special features; to assess the condition of the features on the site, and to ascertain whether an offence under s.28M of the 1981 Act has been committed. Entry to the land may be by vehicle or boat, and the person entering the land may take equipment or materials with him. The person entering the land must leave it as effectively secured as he found it and the agency will be liable to pay compensation for any damage caused by the exercise of the power of entry.
Schedule 8 - Sites of Special Scientific Interest
148. Paragraph 1 of Schedule 8 replaces s.28 of the 1981 Act with new sections 28 to 28M inclusive.
149. New section 28 revises procedures for notifying SSSIs. The measures include: affirming the duty of the conservation agencies to notify land of special interest; setting out the procedures and timetables to be followed (including the opportunity for representations to be made to and considered by the agencies) before a notification can be confirmed with or without modification; requiring notification to be given to owners and occupiers (that notification to specify the features by reason of which the site is of special interest, and to include a list of the operations likely to damage those features), the local planning authority, and the Secretary of State; the notification to be published in a local newspaper. The notification should also include a statement of the conservation agencies' views about the appropriate management of the land. Paragraph 4(3) of Schedule 8 amends s.52 of the 1981 Act to provide that "occupier" include commoners, defined in the section as persons with rights of common.
150. Section 28A enables the conservation agencies to vary the matters specified in the notification, other than the area of land concerned, at any time after confirmation. The agency must give notice to the owners and occupiers of the land affected, who may make representations. The amended notification may then be withdrawn or confirmed (with or without modifications).
151. Section 28B provides a power for conservation agencies to denotify all or any part of an SSSI if the features making the site one of special interest no longer exist (or no longer exist in that part of the SSSI). Where the power is to be exercised the agency must notify, amongst others, owners and occupiers and advertise the fact in a local newspaper; representations may be made to the conservation agency and the agency may then withdraw or confirm (with or without modifications) the denotification. If they do neither, the proposal to de-notify will lapse after nine months. The land will continue to be protected until the de-notification has been confirmed.
152. Section 28C provides that the owner or occupier of an SSSI shall not carry out any operation listed in the s.28 notification as likely to damage the site unless -
(1) notice is given to the conservation agency of a proposal to carry out the operations, and
(2) the agency give their consent or the works are carried out under the terms of an agreement with the agency, or under a management scheme or notice.
Consent may be granted subject to conditions and consent may be withdrawn or modified. However the agencies must give reasons for their decision. This section does not apply where the owner or occupier is a public body (defined under section 28E) carrying out its functions. The reason is that in these circumstances s.28F (see below) will apply.
153. Failure by an owner or occupier to follow the procedures in (1) and (2) above will be an offence under s.28M(1) but it is a defence if the owner or occupier is in possession of a relevant permission or consent from a public body, where the procedures in s.28G below have been followed (s.28M(4)).
154. Section 28D provides that any person who has been refused consent (this includes a deemed refusal where after 4 months the agency has neither granted nor refused consent) or had it granted subject to conditions or holds a consent which has been modified or withdrawn, may appeal. The appeal must be made within 2 months of the decision or failure to decide, to the Secretary of State or the National Assembly for Wales in Wales, who may cause a hearing or local inquiry to be held into the appeal. The Secretary of State and National Assembly for Wales may make regulations specifying the procedures for appeals. There is power to award costs of the proceedings.
155. Section 28E imposes a duty on "public bodies" in exercising their functions to take reasonable steps, consistent with the proper exercise of those functions, to further conservation and enhancement of the special features on an SSSI. This applies where the public body is exercising its statutory functions on an SSSI or on land outside the SSSI where those functions affect an SSSI. "Public bodies", referred to in the Bill as section 28E authorities, are defined in subsection (3) to include Ministers, Government Departments, local authorities and statutory undertakers (whether in the public sector, or a privatised utility) and other public bodies.
156. Section 28F requires the public body to notify the conservation agency when they propose to carry out operations in the exercise of their functions, which are likely to damage the features of special interest of an SSSI. This applies equally to works outside an SSSI, which may affect that SSSI. The conservation agency may refuse its assent, or assent to the operation (with or without conditions). Where assent is refused, or the conditions are not acceptable, the public body may proceed with the works, providing that they give the agency not less than 28 days notice of the start of the operation. That notice must state how the body has taken into account any advice which the agency has given. It is a requirement that any such operations are carried out so as to cause as little damage as is reasonably practicable.
157. Section 28G applies where the authority has powers to grant permissions, including authorisations or consents, for other parties to carry out operations (whether on or outside an SSSI) which are likely to damage the SSSI. Before granting any such permission they must give the conservation agency not less than 28 days notice. Before making any decision the authority must take into account the advice of the conservation agency (s.28G(5)). If the authority intends to grant permission against the advice of the agency, they must notify the agency and the permission must allow 21 days before operations may commence. This would for example give the agency an opportunity to contact the applicant to discuss ways of mitigating any effects, or to offer a management agreement.
158. Section 28H sets out provisions for Management Schemes, which may be formulated by the conservation agencies. A management scheme will set out measures for conserving or restoring the special interest of the land. The conservation agency must consult the owners or occupiers of the land about a proposed management scheme. The agency may then serve notice of the proposed scheme on owners and occupiers who may make representations. Within 9 months, the agency must confirm (with or without modifications) or withdraw the scheme. The agency may cancel or withdraw a scheme at any time.
159. The management scheme is a new concept and is designed to provide a detailed statement of the measures required for positive management of the SSSI, which is available to owners and occupiers. It should provide greater detail than the statement of views about the management of the land served with the notification of an SSSI, and is designed to help secure that SSSIs remain in favourable condition. It may specify activities for which consent is given. It is also designed to help ensure that all parties are aware of the recommended management regime for conservation and restoration of the special features.
160. Section 28I enables a conservation agency to serve a management notice on the owner or occupier where (1) the agency has formulated a management scheme which is not being implemented, and as a result the features which make the land of special interest are being inadequately conserved or restored, and (2) the agency has been unable to conclude a management agreement, on reasonable terms, with the owner or occupier. A management notice is a notice requiring specified works (which it is reasonable to require to ensure the land is managed in accordance with a management scheme) to be carried out on the site. Section 28K(2) provides that the conservation agency may make payments for the costs of this work. They may also enter the land and carry out the works themselves, if the notice is not complied with, and may charge the costs to the owner or occupier.
161. Section 28J enables any person who has been served with a management notice, to appeal against it to the Secretary of State or the National Assembly for Wales as appropriate. Notices may be quashed, varied or confirmed. Procedures for appeals will be set out in regulations. There are provisions for hearings or local inquiries as in s.28D above.
162. Section 28K provides that the conservation agencies may make payments to an owner or occupier of land in relation to which a management scheme is in force. If they withdraw or modify an existing consent to carrying out operations, they must offer a payment to an owner or occupier if he suffers loss as a result. The making of payments will be set out in guidance given and published by the Secretary of State, as respects England, and the National Assembly for Wales as respects Wales.
163. Section 28L. This new section gives the conservation agencies a compulsory purchase power in relation to land notified as an SSSI (additional to that in section 17 of the National Parks and Access to the Countryside Act 1949 relating to nature reserves and additional also to that in the new s.15A of the Countryside Act 1968 to be inserted by clause 66(3) of the Bill). This new power may only be exercised where the agencies cannot secure an agreement for the management of a SSSI or where the terms of such an agreement have been breached in such a way that the land is not being managed satisfactorily. The agency may then either manage the land or dispose of it to ensure its future management.
164. Section 28M provides for offences. Subsection (1) makes it an offence for an owner or occupier to cause or permit damaging operations contrary to s.28C(1) without reasonable excuse. The penalty is a fine not exceeding £20,000 in the magistrate's court or, on indictment, an unlimited fine. Subsection (2) makes it an offence for a public body, as defined in s.28E, to carry out operations in contravention of s.28F, without reasonable excuse. The penalty is the same. It will be a reasonable excuse in any event that a planning permission (granted on an application) is held for the works, or that the works were necessary as an emergency measure, or that a permission or consent has been granted in accordance with s.28G. Subsection (6) makes it an offence (carrying the same penalty) for any person intentionally or recklessly to damage or destroy the features which make a site of special interest or intentionally or recklessly to disturb fauna for which the site is notified, provided he knew that what was damaged, destroyed or disturbed lay within the SSSI. Failure to comply with a management notice is an offence under subsection (7) and attracts the statutory maximum fine (£5,000) or on indictment an unlimited fine. Proceedings for an offence under this section may only be taken by the conservation agency, unless the Director of Public Prosecutions consents otherwise.
165. Paragraph 2 of Schedule 8 repeals section 29 and section 30 of the 1981 Act which allow the conservation agencies to make a Nature Conservation Order and provide for associated compensation. These powers are no longer required as the provisions in the Bill (s.28 to s.28M) are designed to give fuller protection to SSSIs.
166. Paragraph 3 of Schedule 8 amends s.31 of the 1981 Act so as to enable the court to order restoration of a SSSI where a person has been convicted of damaging or destroying it under s.28M (1) or (6), or where a public body (as defined by s.28E) has been convicted of an offence under s.28M(2) or (3). This applies whether the operation which damaged the special features took place on, or off, the SSSI.
167. Paragraph 6 of Schedule 8 provides for a new Schedule 10A in the 1981 Act. The Schedule contains provisions relating to the appointment and powers of persons appointed under ss.28D(8) and 28J(10) to determine appeals in respect of consents and management notices.
10 Published by the Department of the Environment, Transport
and the Regions, September 1998. Available free of charge from: DETR Free literature, PO
Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237
11 Sites of Special Scientific Interest: better protection and management. The
Government's Framework for Action. Published by the Department of the Environment,
Transport and the Regions, August 1999. Available free of charge from: DETR Free literature,
PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237
11 Sites of Special Scientific Interest: better protection and management. The Government's Framework for Action. Published by the Department of the Environment, Transport and the Regions, August 1999. Available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237
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