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Lord Whitty: My Lords, we had a fair run at the issue of coastal land at an earlier stage of the Bill, albeit the noble Baroness is right that that was in the early hours of the morning. As to the principle, coastal land is regarded by most people as open country. In the 1949 Act open country was defined as,
The noble Baroness is correct to say that the reason it was not included in the Bill was in part because of the complexity and nature of the land and also because the Countryside Agency's advice to us was that provision should be made for it but with widespread consultation to ensure the practicalities of application. It is those practicalities which have led us to insert an order-making power rather than provide for coastal land to be covered by the Bill.
The provision to enable the right of access to be extended by order provides the opportunity to do all the work that is required to deal with complex problems, some of which the noble Baroness referred to, and to take account of experience in the management of other areas of access land. We have given very firm undertakings that we shall consult widely before we ever use that power and that any order will be accompanied by a full regulatory impact assessment. The consultation and the wide assessment of the impact needs to be part of that process, which will be subject to the affirmative resolution procedure. There has been concern about the details. However, those details will be sorted out within that process.
At earlier stages noble Lords debated the definition of coastal land and the various powers to make access work. Those debates indicated that the Government were right to take this matter somewhat slowly because of the complexities involved. Nevertheless, if we are able to resolve the complexities the principle that coastal land is subject to open access should be part of the Bill. I do not guarantee either way that the Government will ever trigger this clause because they recognise the complexity of the matter. But when one is considering a major piece of legislation that deals with open country the possibility of extending it to coastal land, which is beloved by so many walkers and families and should, in principle, be subject to the same provisions, ought to be covered. Whether that can be easily done, how complex it is and what restrictions should be placed on it are matters for a further process, but it should be covered rightly by the provisions of the Bill. I hope that the noble Baroness will not pursue her amendment.
The noble Lord said: My Lords, in moving Amendment No. 6, I wish to speak also to Amendments Nos. 8 and 9. We feel that the Government's Amendment No. 19 does only half the work with regard to mines and quarries. Amendment No. 6 is needed to remove liability under the Occupiers' Liability Act 1984. I understand that the ramblers are worried that unless this liability is removed owners will push for land with mines and so on on it to be excluded entirely from the right of access.
The Government have recognised that in deciding the scope of any duty of care owed by the occupier on access land, the importance of maintaining features of historic traditional or architectural interest should be considered. That could include historic features such as abandoned lead or tin mines and quarries or scheduled monuments such as castle ruins. The amendment seeks to ensure that such features are protected by removing liability under the Occupiers' Liability Act for those features. That approach ensures certainty for the occupier; avoids costs for occupiers by ameliorating the need for hazard assessments and increased insurance premiums; avoids the risk of owners removing ancient features for fear of liability; and avoids large tracts of access land affected by historic mining and quarrying having to be excluded by direction from the right of access.
It is important to be clear that while government Amendment No. 19 to Clause 42 will provide for regulations to exclude liability for mines and quarries under the Mines and Quarries Act, it will not remove liability in respect of those features under the Occupiers' Liability Act. If the latter liability is not removed, owners will still have to undertake risk assessments and to fence off mines and quarries on access land. That will impose costs and support arguments for compensation. Alternatively, owners will simply apply for directions to exclude such land entirely from the right of access on safety grounds under Clause 25. That will not be in the interests of walkers and mountaineers. That is a point readily recognised by the Ramblers' Association in previous discussions with the CLA.
Among the fraternity of people who will avail themselves of the right of access over access land, there is clear understanding of the hazards. I believe that many of that fraternity would support the amendment.
Amendments Nos. 8 and 9 deal with the question of the extent of the exclusion of an occupier's liability for injuries on his land. By virtue of Clause 13(1) of the Bill, any person entering under the access right is not to be treated as a visitor of the occupier. In other words, he is in the same position as a trespasser in relation to duty. However, by virtue of Section 1(3) of the Occupiers' Liability Act 1984, an occupier can owe a duty to a trespasser in certain circumstances. One of the factors in deciding whether or not he owes such a duty is whether he has reasonable grounds for believing that people may come into the vicinity of the danger.
Clause 13(2) of the Bill provides that in certain circumstances the occupier owes no duty whatever to a person who is exercising an access right. Thus the person does not even have the rights of an ordinary trespasser. However, those circumstances are limited, as set out in Clause 13(2), as amended on Report.
I have sought to extend this exclusion of all liability to include, for example, old barns and so on. During the debate on this and from discussions with the Government, it would appear that the Minister intends the exclusion in Clause 13(2) to apply only to features which are actually on access land. Since buildings are technically not access land, the exclusion therefore does not apply to them. Such a reading of the Bill produces curious effects. For example, "A" and "B" are on access land when a storm occurs. "A" shelters beneath a tree on access land. If a rotten branch collapses on his head he has no claim. However, if "B" takes shelter in the occupier's disused barn and thereby becomes a trespasser, he may have a claim. Furthermore, the fact that the barn is now close to much used access land will increase the likelihood of a duty being found. In other words, the person who breaks the rules is in a better position to claim than a person who obeys them. Amendments Nos. 8 and 9 are designed to deal with this situation. I beg to move.
Earl Peel: My Lords, I rise to support my noble friend. In so doing I declare an interest in the amendments. I acknowledge that Amendment No. 19 goes some way towards dealing with the problems we discussed when I moved an amendment at a previous stage of the Bill in connection with quarries and mines. As my noble friend Lord Glentoran rightly said, the amendment does not deal with the question of occupiers' liability. I do not want to repeat what my noble friend has said. He has explained the situation extremely well.
As the Bill stands, there are opportunities for an increasing number of litigious cases unless the Government deal with the question of liability. It is a simple matter. If we are to invite people on to private land it is ridiculous that owners should be left with any liability at all. The Minister has gone so far to exclude liability, will he explain why he has left this packet at the end? There must be a good reason for it. To date, I have not had a good explanation for it. I look forward with interest to hearing what the noble Lord has to say in explaining his case.
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