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Baroness Miller of Chilthorne Domer: Before my noble friend replies to her amendment, perhaps I may thank the Minister for her response on Amendment No. 441A. It is important. The DETR's estimated annual costs at the moment are around £12.5 million and the extra annual expenditure of removing obstructions is likely to be over £5 million. The time and effort put into this matter therefore is very worth while in terms of the public purse.
Baroness Scott of Needham Market: I thank the Minister for her comprehensive reply, which I shall study carefully in Hansard. I remain concerned that the significant number of obstacles to the rightful enjoyment by the public of their rights of way will not diminish as a result of the Bill. Nevertheless, I take encouragement from the Minister in terms of ploughing and the objections. Therefore, I beg leave to withdraw the amendment.
The noble Baroness said: This subparagraph in the Secretary of State's regulation-making power is, in my view, a Henry VIII clause. It would enable the Secretary of State to change the appeals procedure without further recourse to Parliament. We feel that it is not in the public interest that he should be able to do so. All changes to appeals procedures should be cleared first by Parliament. I beg to move.
Lord McIntosh of Haringey: I can assure the noble Baroness, Lady Byford, that there is nothing sinister in the regulation-making power in new Section 121E which Schedule 6 inserts into the Highways Act 1980. The current procedures for making and confirming orders creating, diverting or closing rights of way under the Highways Act were not specifically designed for the kind of application and appeals process included in the Bill. It has therefore been necessary to adapt those procedures. We could not replace them with something entirely new because there is overlap between the appeals process and the process of making and confirming orders. We want a regulation-making power merely as a prudent measure to ensure that if, in practice, any procedural difficulties arise, then minor amendments to Schedule 6 may be made.
I hope the noble Baroness, Lady Byford, will be comforted by the fact that the Select Committee on Delegated Powers and Deregulation scrutinised all the regulation-making powers in the Bill. This was one of many which it did not consider required amendment. I hope that that encourages her not to press the amendment.
Baroness Byford: I fear that in this Chamber that would be a terrible thing to do! I thank the Minister for his response and believe that he will understand why concern has been expressed. I am pleased about his assurance that the amendments will be minor. Having tried to tempt him to describe what is "a high level of", perhaps I can tempt him to describe what is "minor". But perhaps that would be unkind and at this stage I beg leave to withdraw the amendment.
In addition, the provision to prescribe the grounds on which such diversions can be made suggests that the power to divert might not in practice be as flexible as it should be in the interests of effective land management.
If an occupier wants to divert a path temporarily he must give at least 14 days' notice to the highway authority; at least seven days in advance of the diversion, publish in a local newspaper a notice that the route will be diverted; display notices during the period of the diversion; and gain consent from a neighbouring occupier if the diversion involves adjacent land. Few occupiers are likely to be willing to incur the costs involved in meeting those requirements for a diversion lasting only five days.
There is a serious need for a temporary diversion procedure but the provisions must allow land managers to divert paths for the period needed to undertake dangerous operations. Equally, the provisions should be flexible in order to accommodate varying land management needs both now and in the future. Operations where temporary diversions might facilitate land management include the thinning or felling of woodland, which may take several weeks. I can think of woodlands where many public rights of way had to be closed after the major storms in 1979 and 1987. They also include the harvesting of coppice biomass crops, which is highly mechanised; building works adjacent to rights of way; programmes of aerial spraying of bracken; harvesting operations involving the intensive use of machinery over cross-field paths or in farmyards where, for example, grain is being transported between trucks, dryers and stores; spraying out the line of cross-field paths; programmes of moor burning; repairing (for example, surfacing eroded paths); pest control (for example, culling deer in woodland); and shooting events, which are perhaps less relevant because they would not take so much time and are covered elsewhere in Part I.
The amendments would extend the provisions by increasing the period to 28 days, providing a proportionate payback in terms of the cost involved in securing diversions. Removing the reference to "prescribed activities" enables the more flexible use of the provisions to meet current and emerging land management needs which could pose a danger to people using rights of way.
We recognise that user groups may be opposed in principle to any diversion. However, provided that they are well managed, as new Sections 135A and 135B require, the alternative routes should be clear and suitable and they should be much safer, avoiding possible risks to users. I beg to move.
The time limitation is totally unrealistic and restrictive. My noble friend gave examples of the kind of work which might be done; for example, the thinning of woodland and so forth. Five days is a very short time to carry out any significant work. I give the example of a footpath running close to a stream which has flooded and eroded the path. The stream bank may require some buttressing so that the path can be restored and the land protected.
Such work will take longer than five days to accomplish. Amendment No. 411 proposes 28 days, which may still be a short time but is more realistic. I dare say that some of my noble friends can produce examples of works which might cause a danger to the public using footpaths and bridleways and which are more apposite and better than my example.
As the prescribed works are potentially dangerous to the public, I should have thought that the persistence of the danger should be the determining factor as regards the duration of a diversion, rather than an arbitrarily fixed time laid down in statute. That is unduly binding. The five-day limit for diversion seems to be inspired by an anxiety on the part of the Government to ensure that a landowner does not abuse the provision to divert a path rather than by genuine concern about the safety of users. I believe that on this occasion the Government can set aside their obsession with wicked landlords because diversions under this provision cannot take place without the permission of an authority.
Furthermore, works of the kind envisaged here and the necessary consequential diversion cannot be embarked upon without a great deal of preparation as specified in subsections (5), (6), (7) and (8). Fourteen days' notice must be given, a notice must be placed in a local newspaper seven days in advance and notices must be displayed in prescribed places.
The preparations seem to be substantial, bearing in mind that the diversion is for only five days. I believe that the period is exceedingly short and hardly worth the effort implied in subsections (5), (6), (7) and (8) and all the requirements therein. The Government would be well advised to look again at the time constraint, otherwise the effect will be to discourage owners from doing necessary works in the vicinity of the footpaths and bridleways. That cannot be of benefit either to the landowners or users of paths and bridleways.
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