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Baroness Miller of Chilthorne Domer: Amendment No. 55 is a probing amendment to discover whether the wording under "Excepted Land" in paragraph 4 of Schedule 1 is adequate. There appears to be no legal definition of "getting of minerals". The commonly used phrase is the winning and working of minerals and disposal of mineral waste. It is a specific issue in, for example, china clay areas. Many of the workings and spoil heaps will abut open land. The large areas often required for the disposal of mineral waste need to be taken into account. They are not mentioned in the Bill. The wording of the amendment makes it clear to members of the public that there is no access to land for disposal or the area from which the mineral is dug. I welcome the Minister's clarification. I shall then decide what to do.
Another pursuit occurs on open land at certain times of the year which could be as potentially dangerous to an individual roaming about as a string of race horses thundering down upon him. When I represented in another place part of the Lake District, I well recall that in winters with a degree of snow local people often set up ski runs in conjunction with a road where they could be given a lift back to the top of the hill. I shall not do so, but I could quote examples where temporary ski lifts operated by tractors were erected.
I have seen a lot of inexpert skiers in my old constituency going down hills at high speed. That is no place for people to be roaming around. I wonder whether the Minister would consider the issue before Report stage and be kind enough to comment today on whether it might be wise to add a provision to exempt from open access land that was used as a ski run when snow was lying on the ground. I can envisage people using the free access granted by the Bill to wander about, probably to watch others indulging in winter sports of one form or another. That would be very dangerous. It would be wise to make an exemption for those relatively rare circumstances.
Viscount Bledisloe: Once again, I find the grouping very unsatisfactory. We have no fewer than 20 amendments designed to cover a wide range of subjects. They have no common theme except that they are all exclusions from the definition of access land. Even the noble Lord, Lord Glentoran, when proposing them, felt unable to give a justification for each of them. I hope that the Minister will be braver and tell us about them individually, explaining whether each one is acceptable. I venture to hope that on future days on the Bill we shall not be confronted with a hotch-potch of 20 things that have nothing in common.
In such circumstances, one inevitably has to pick. I join the noble Earl, Lord Peel, in drawing attention to Amendment No. 41. Let us consider the example of the house of a shepherd, a keeper or somebody who likes living away from things, which is situated up on open land or moorland. There will obviously be some sort of track leading towards it, which will be a natural route for walkers. It is very likely that the fence round such a house will be only a few metres from the building on one or more sides. The house may have a garden in front or behind, but it will not have 50 metres of garden all round it. The wife of the shepherd in question may find herself alone at home--the problem could even arise at night if the Government persist in their ill-conceived idea of allowing access at night. Allowing people to walk past the house at night, five or 10 metres from the window, is an intolerable burden which would be very frightening and highly undesirable. I sincerely hope that the Government will feel able to accept the amendment as they give us a lucid explanation of the other 19.
Lord Whitty: On this occasion I do not agree with the noble Viscount, Lord Bledisloe. The amendments have a common theme. As he identified, they would all restrict the areas to which access rights would be granted. My starting point is to oppose all of them. Some of them may have more reasonable arguments behind them, but taking all of them together would restrict the areas to which access was granted. I suspect that that is the motivation behind many of them.
However, the definition of "development" in the Town and Country Planning Act is wider still and includes issues such as the making of any material change in the use of a building or other land. If the amendment followed that definition it would mean that the public could be denied access simply because of a change of use for which planning permission had been given. I do not believe that that was the intention but it would be the effect. I believe that the real safeguard in this area is that buildings are already covered.
Amendment No. 37 would except land comprising a highway. However, the public already have rights of passage on foot on all public highways except motorways, which I do not suppose feature too often on access land. Those rights are not affected by Part I of the Bill. Therefore, it would be somewhat nonsensical to except highways.
I accept that real anxiety about buildings exists in relation to Amendment No. 41, as referred to by the noble Earl, Lord Peel, and the noble Viscount, Lord Bledisloe. However, Schedule 1 already excepts buildings and their curtilage. It also excepts gardens and parkland, much of which will be substantially larger than the 50-metre requirement in the amendment. An exclusion zone based on 50 metres would be arbitrary and effectively would mean that in many locations the public could not pass that building. Therefore, the essential means of access to open country would be excluded by having a 50-metre umbra around any building which itself was exempted by the buildings requirement. Therefore, I believe that such an exclusion is excessive. The curtilage requirements and those which relate to gardens will protect substantially isolated dwellings from any right of access to come close to that house.
Amendments Nos. 43, 43, 45, 46 and 63 exempt a number of areas such as burial grounds, sports pitches, waste processing sites and quarries which are being backfilled. Such instances would arise relatively seldom on access land. However, if they do occur--and I make this point in relation to many of the amendments--there is a process for dealing with them: that is, by application to the Countryside Agency for restrictions or closures, either temporary or permanent. I believe that that, rather than a blanket exclusion on the face of the Bill, should apply in relation to most of the items covered by those amendments.
I also say to the noble Lord, Lord Jopling, that if do-it-yourself ski runs were being erected all over his former constituency, I believe that, likewise, application for restriction could be made to the Countryside Agency either on specific occasions or
Amendment No. 55 in the name of the noble Baroness, Lady Miller of Chilthorne Domer, refers to mineral works. Again, such land is unlikely to be mapped on open country. However, the noble Baroness raised a specific point in relation to the use of the terminology "winning and working". That has been used in previous legislation and may be more appropriate than the current wording. Perhaps I may take away that matter to consider the implications. It may be sensible to use the noble Baroness's suggested wording.
Amendment No. 44 refers to TV and film studios. By and large, TV and film studios qualify as buildings. I believe that we are pushing matters somewhat here. Walkers must not interfere with the lawful activities of others. Therefore, if a location shoot is taking place lawfully on land, walkers must not interfere with it. Therefore, I believe that even temporary filming is covered. Of course, the landlord can again either use his discretion within the 28 days or apply for an exemption in the normal way.
Amendment No. 47 relates to educational and medical institutions. Again, most of those are buildings and we believe that such land will largely be covered by the legislation relating to parks and gardens. I do not believe that there are many other items which do not fall under that specification.
Amendment No. 48 was dealt with in part at an earlier stage. It excepts streams and other watercourses. Again, use of those streams and watercourses for activities in the water is not covered by the access rights in any event. But to except land because there was a stream across it would seriously confine access to other bits of land.
The noble Earl, Lord Peel, has tabled Amendment No. 51, although I do not believe that he spoke to it. That relates to small areas of woodland. It will be a matter of discretion for the countryside bodies whether they exclude such pockets of woodland. For example, small semi-natural clusters of oak or rowan can be found on some areas of high moor. They are usually unfenced and it would be illogical to exclude them from open country. On the other hand, a fenced forestry plantation would be most unlikely to be seen as part of open countryside. Therefore, some discretion must be left to the countryside agencies in defining those areas which would be excepted.
Amendment No. 54 deals with some obtuse point about plural or singular. That makes no significant difference to the approach. A distinction is sought to be made between the curtilage of a building and the curtilage of land covered by a building. Our advice is that there is practically no difference between those two expressions and that in this case at least, if not
Amendment No. 59 would remove the restriction that the exception of land under paragraph 7 must not fall within any of the preceding paragraphs. Again, Amendment No. 59 does not seem to have any practical effect since it would simply allow land to be excepted both under paragraph 7 and under any of the other paragraphs. Therefore, that is not needed.
As regards Amendment No. 64, paragraph 12 provides that land cannot be treated as excepted land simply by undertaking on it one of the activities listed in the schedule if planning consent should have been obtained but has not been obtained. If we removed paragraph 12(1), as is proposed by the amendment, individuals' rights of access would be reduced because of the unlawful behaviour of others in not obtaining planning permission. On the face of it, that seems to be inequitable and I should not be prepared to accept that amendment.
Finally, the Committee may be grateful to hear, Amendment No. 65 would clarify that access would not be excluded from land covered by electricity transmission lines. We do not believe that electricity transmission lines or telephone wires "cover" the land as such and therefore, the amendment is not needed.
All the amendments seek to extend the area of land excepted and therefore to restrict the right of access. In all cases, I do not believe that they are wholly justified, although some of the anxieties behind the amendments are real. At this stage, I am not prepared to accept any of the amendments. I have said that I will look again at the wording of one or two of the amendments. But in general, I ask Members of the Committee not to pursue the amendments.
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