|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
The Earl of Caithness: I rise to support Amendment No. 4 and to speak to my Amendment No. 5 because the arguments are the same. The purport behind the amendments tabled in my name is to make the Bill as workable as possible. Although I am no longer a land agent and will not have to implement such legislation, I still have many friends in my old profession. I am interested in it and they have made many representations to me as regards the practicalities of how the Bill will work when it becomes law. That is what I am trying to improve.
My noble friend Lady Byford referred to the complexity of the Bill. It is not the most complex piece of legislation ever to come before us but the grouping of the amendments has made it infinitely more so. The previous group was a real dog's dinner and this one is not much better. It brings together two totally different subjects, making it more difficult for the Government to reply sensibly and for us to follow that. I should think that it is impossible for anyone outside to understand what the heck is going on! Having studied the groupings more closely, I shall certainly degroup some of my amendments and I hope that other Members of the Committee will do the same. We should then be able to have a better and more focused discussion.
My noble friend's amendment is aimed to give greater clarity to the qualification found in Clause 4(5)(a) and underlines the fact that including small areas of land is impractical, extravagant and of limited appeal to walkers. Exclusions of parcels of land this size will not affect visitors' ability to walk through the most rewarding part of the English countryside. It will, however, reduce the administrative burdens on access authorities. An unlimited pot of money will not be available to access authorities so they must ensure that the available money is used in the best possible way. Even a 10 hectare area of land will absorb funds for
Such a small patch of land will probably be of limited attraction to walkers, yet the mapping authorities must ensure that access to it is available across whatever land stands between it and other access land, and that will absorb more funds. Some small areas of land will include outstanding natural features, such as waterfalls, but the public already have access to the great majority of them and the Bill allows for and encourages voluntary access agreements.
The amendment is also intended to ensure that there is a consistency of approach across access authorities so that certain small parcels of land will be excluded, under whichever authority they fall. That will reduce uncertainty, as was said by my noble friend Lord Brittan, and it will reduce the number of court actions and their associated costs. Furthermore, it will reduce the impact of the Bill on many small landowners and residents of the countryside, the kind of people referred to by the noble Baroness, Lady Strange, when debating the previous group of amendments. I hope that the Government will give serious consideration to Amendment No. 4.
Baroness Miller of Chilthorne Domer: As regards minimal land sizes, in particular in southern Britain, the public would like access to many areas of land. I refer to those which have become isolated--for instance, the tops of downs or tors--in areas where the rest of the land is now cultivated. It would therefore be a shame to impose a minimum limit on the size of the land.
The noble Lord, Lord Brittan, asked whether we want the agencies to have sole discretion over where the boundaries should be. I would say that we do not. That is the purpose of our Amendment No. 156. We believe that however precisely the Bill is drawn as regards the definition of land, it will never be precise enough to address all the margins of land which are difficult to define. A better way of doing so would be to provide a broader definition and then to allow local landowners, users and the access authority to reach a consensus and advise the agency.
Norfolk County Council wrote to me about the issue pointing out the heathland in that area. Heathland must be more than 10 per cent heather but much of Norfolk's heathland is grassland. Much of Norfolk's common land is now foreshore but some of it is cultivated. As I read the detail, I realised that the permutations were vast and that the wording which might appear in a Bill would never cover all the points made. That is also true around the margins of downland and Exmoor, which I know better. Some issues will always be better resolved locally around the broad definition.
Amendment No. 4 would require any area of access land to be at least 10 hectares in extent and Amendment No. 5 would restrict right of access to open country of at least five hectares in extent. We have given the countryside bodies a practical and flexible discretion not to map areas of land which are so small that they believe that their inclusion will serve no useful purpose. That will enable them to exclude small parcels of land which would involve wholly disproportionate effort and cost to survey and consult upon. They may decide to adopt different thresholds in relation to different types of land. We see no reason to interfere with that discretion.
The noble Baroness, Lady Byford, spoke about size. We appreciate that in some parts of the country, or on some categories of land, five or 10 hectares may be considered a small area that it is appropriate to omit. Those are precisely the circumstances in which the countryside body may well decide, in line with its discretion in Clause 4(5), that the inclusion of such land serves no useful purpose. At the same time, it is worth bearing in mind that 10 hectares is approximately equal to 15 football pitches. In certain circumstances even five hectares is a sizeable area of land. There will be circumstances where to fail to map an area of five or 10 hectares omits a significant area of open country which would serve a useful function in relation to a new right.
The Bill requires the countryside bodies to map all parcels of registered common land of whatever size. Amendment No. 4 would apply a minimum area of 10 hectares to common land as it does to other access land. I believe that that is an important response to the noble Lord, Lord Brittan. Three-quarters of all registered commons in England are smaller than 10 hectares in extent and they are often the only uncultivated, unenclosed land within an environment of intensively farmed agricultural land. We therefore wish to resist amendments which would apply an arbitrary size threshold to the mapping of open country or registered common land. I ask the Committee to picture for a moment the totally different circumstances in North Yorkshire and a heavily cultivated area of the country.
The question of land to "consist" of the open country categories is dealt with in Amendment No. 23. That amendment places a duty upon the countryside bodies to map land which consists of mountain, moor, heath or down, rather than land which "appears" to
However, the exercise is not purely an automatic one. It involves more than the simple application of a set of rules. The countryside bodies will need to exercise an element of judgment. The words in the Bill reflect that, and, incidentally, are the same as those used in the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968. To omit the words "appearing to them" might mislead people into thinking that no element of judgment was involved. As the Committee has accepted, landowners will have a right of appeal to the Secretary of State or the National Assembly for Wales if they do not believe that their land consists wholly or predominantly of open country, and that provides the necessary safeguard for their interests.
Amendments Nos. 24, 25 and 178 would remove or limit the discretion for the countryside bodies to map land which is predominantly mountain, heath or moor. In response to the noble Earl, Lord Caithness, the Bill enables countryside bodies to include on maps of open country any small outcrops of land which may not fall squarely in the definition of "mountain, moor, heath or down" but which are part and parcel of a much larger area of land which does fall within those categories.
The noble Earl, Lord Peel, raised a detailed question relating to Clause 4(5)(b). He questioned whether it would provide an adequate substitute for "wholly or predominantly". This clause gives countryside bodies discretion only to extend the boundary of open country to physical features. "Wholly or predominantly" is about including small areas of land which are not open country within larger areas of open country. For example, heaths will often contain scattered clumps of trees. To attempt to exclude them all would make little sense either in mapping terms or on the ground, and it would be practically impossible to do so. Equally, it would be impossible to make clear where the right of access was and was not available.
The noble Baroness, Lady Byford, and the noble Earl, Lord Peel, referred to the lack of precise definition of the term "predominantly" and its rigid application in every case. We do not intend that it should have that degree of rigidity. It must allow a reasonable level of discretion. It will not allow substantial areas of other categories of land to be mapped as open country, but it will mean that proportionately small areas of land, such as scrub or trees on heath land, or pools on moorland, which are part of a much larger area of land that clearly comes under the definition of open country, need not be excluded from the maps.
|Next Section||Back to Table of Contents||Lords Hansard Home Page|