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Baroness Byford: My Lords, this Bill gives new rights of access. At the moment, people do not have the right to walk on other people's land. Therefore, surely the liability cannot be viewed in the same way--unless I am mistaken.
Lord Whitty: My Lords, the liability of access land owners to someone who is legally on their land as a result of this Bill is less than that which other property owners have to people who are illegally on their land. That is the disparity to which I refer. We have already balanced the increase in the right by reducing the liability across the board. Further, in particularly difficult cases we have agreed--in some respects slightly against my better judgment, although we must try to reach a degree of understanding of landowners' concerns in this regard--to exclude that liability altogether. Therefore, we have made at least two moves away from the general liability which applies, in the case of every other property owner, not to individuals who are legally on other people's property but to those who are illegally on other people's property.
Lord Whitty: My Lords, the issue in relation to the Human Rights Act is again a question of balance. The Human Rights Act will have to take into account any modifications to the law which have been made by restricting the right of ownership in this respect. We have done so by reducing the liability in that regard and making other provisions which protect the interests of landowners in the way in which the right of access will operate. The Human Rights Act is itself concerned with balance.
The other precedent to which the noble Earl, Lord Peel, referred, which is basically the question of highways, is a very misplaced one. I know a thing or two about highways. In general, highways are maintained by the highways authorities who are aware of defects and can address them. The liability of the occupier of a highway to highway users is not uniformly low, as the noble Earl suggests. The occupier is liable not only for the effects or non-effects of his own activities in relation to the state of the highway, but also for the state of overhanging trees, vegetation, the condition of gates, stiles and adjacent fences when we are dealing with pathways and bridleways and so on. Therefore, there is a substantial liability on the occupiers of highways. In the Bill we have virtually excluded all that. We have excluded
In general, I feel that the Government have moved substantially to balance out the increased rights which users will have against the rights of landowners to make better use of their property with these restrictions in liability. With the additional amendments in the group we have moved the matter further.
I am not persuaded by the noble Viscount, Lord Bledisloe, that we should move yet further and take into account not only the possibility of a claim, but the likelihood of any claim and the removal of any residual liability. We believe that occupiers should retain a minimal liability, particularly for reckless and intentional acts and that that liability should be owed to trespassers.
The noble Viscount's other point related to buildings, a subject on which, as he says, he and I have spoken. I still cannot accept his basic argument that liability should be excluded in respect of buildings which are not even on access land because the increase of access means that it is more of a temptation to children. The noble Baroness, Lady Mallalieu, in part made the same point in relation to other features. We are talking about buildings which are not on access land. The status of those buildings has not changed. If we were to accept the amendment of the noble Viscount, we would be removing liability even in relation to inherently dangerous structures close to areas where children live, on commons or in urban areas. That cannot be right. We are not talking here about full liability, we are talking about the minimal duty owed to trespassers.
The noble Lord, Lord Roberts, asked whether the landlord would be responsible for something which affected his land which he did not own or operate. I think the answer to the noble Lord is that if he does not own or operate the feature then he would not be liable, but the person who did own or operate it could be liable if it were on access land or indeed any other land. I do not think that an access land landowner would be responsible in those circumstances.
A number of noble Lords referred to mines and quarries. There is an existing duty to fence most disused mines. There is some increased duty in relation to tin mines. We would expect the countryside bodies to provide information about the existence of mines and quarries. We would expect the access authorities, rather than the landowners, to be able to erect notices warning of such dangers. If necessary, access to the areas covered by mines and quarries could be subject to restrictions on grounds of safety or completely excluded by application to the countryside bodies. We also envisage that funding would be provided in appropriate circumstances for the access authorities to help with the provision of signing and fencing. Having said all that, both in terms of existing Acts and of the
Several points were raised in relation to gates, walls and fences. Amendment No. 73B, spoken to by the noble Baroness, Lady Miller, would widen the exclusion from liability in relation to walls and fences. We need to be careful about such a proposal. In many circumstances it might operate reasonably, but potentially it could mean that an occupier would bear no responsibility for a wall which collapsed on people, even if they were not touching it but merely standing by it, although the owner knew it was dangerous. I am sure that that is not the intention of the amendment, but it could well be its effect.
Amendment No. 73C would exclude liability in relation to stiles and other access points in addition to gates. However, again there is a problem with that in that it would mean the occupier would effectively bear no responsibility for, say, a dangerous stile or a dangerous footbridge, even where it constituted the most popular means of access to the access land. I do not think we should go down that road. A minimal liability is still owed in that respect.
The noble Earl, Lord Caithness, asked about advice from the Countryside Agency. We have discussed liability issues with the Countryside Agency on a number of occasions. Its view is that some restriction of liability should operate. But we are talking about the wider balance in this respect. Our concern is that that balance is best achieved by what we have in the Bill at present as further extended in favour of the landowners by the amendments to which the Government have referred.
The noble Baroness, Lady Carnegy, asked whether a number of features are actually natural. Hedges are a natural feature. As a result of another amendment hedges are designated as a natural feature. The noble Baroness also asked about bogs and wetlands. If they are natural features then they again have no liability. It is likely that all such features would be seen as natural, even though there may have been a few minor changes made to them as a result of man's activities.
I have tried to deal with most of the specific points that were raised. I think I am correct in saying that no one spoke to Amendment No. 78, standing in the name of the noble Baroness, Lady Hamwee. Therefore, I propose not to refer to it. The consequences of that amendment would move in the opposite direction from that which most noble Lords are urging. I, too, am maintaining a degree of balance in the debate. Had the amendment been spoken to, I should have demonstrated that at this point. Nevertheless, I think I have made clear my overall position. I believe that the balance we have struck in the Bill is the right balance. A number of the features which we have reflected in our amendments in the group would tighten up the balance. In this context, they all move in favour of the landowner and make it a clearer and more coherent approach. I have pointed out that, whatever the motivation behind some of the amendments, their
("(a) a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or
(b) a risk of that person suffering injury when passing over or through any wall, fence or gate, except by proper use of the gate or of a stile.").