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Lord Glentoran: My Lords, I note that Amendment No. 24 has not yet been spoken to by the Minister, but, even so, I should like to reiterate basically what the noble Baroness just said. My noble friend Lord Selborne initiated this long and interesting debate. I am sure that he has done a very good turn, if I may use that phrase, not only to those directly involved but also to those involved in the matter on the government side, and others, in helping to solve this very difficult problem.
I sincerely hope that the Minister will be able to accept at least the spirit of the amendment in one way or another. In speaking to Amendment No. 24, before the Minister has moved it, I should just like to thank the noble Lord and welcome the amendment.
Lord McIntosh of Haringey: My Lords, perhaps I may start by speaking to Amendment No. 24, as that has been most recently mentioned. As has become clear, this amendment will provide that any regulations made under what is now Clause 68 of the Bill--vehicular access over common land--should proceed via the affirmative resolution procedures. In speaking to this amendment, I should apologise for unintentionally misleading the House during the debate on Report.
At that time, I was under the impression that we had notified the Delegated Powers and Deregulation Committee of our intention to make regulations subject to the negative procedure. I suggested then that, unless the committee advised us otherwise, we intended to proceed on that basis. However, I was unaware of the fact that the committee had not been informed of our proposals. In any case, I accept the point--indeed, it is good to have the noble Lord, Lord Ampthill, on the Woolsack at this moment, because he chaired the relevant meeting of the committee--that it is really not quite proper for government to propose something less in the expectation that the committee might demand more.
I believe that it is up to government to propose the degree of delegation that they consider to be appropriate. If the committee agrees with that, so much the better. But, if not, we then have to consider our position. I do not believe that it is right for us to propose a negative procedure in the hope that we may get away with it, if I may put it that way. That was not the intention of the department.
I have read carefully the report of the Select Committee, which tactfully and courteously rebukes me for what I said. However, I think that the result is perfectly satisfactory; namely, that we propose an affirmative resolution procedure.
The noble Earl legitimately asks the Government to reconsider their position on the question of free easements for properties constructed before 1st January 1906. His amendment would mean that nothing has to be paid in these cases although he referred in his speech to a nominal sum. I shall not repeat his justification for that.
One effect of the amendment would be to deem a right of access for any property built prior to 1906 without there being any evidence to support the existence of an access, let alone its use for vehicular traffic. It suggests that it is reasonable to assume that an access has been used continuously since that date without interruption, over the same land and by vehicles. This appears to us to be a very substantial assumption. The amendment would be at odds with the general laws on prescription which entail those claiming a prescriptive right to produce evidence of how that right has been acquired. I am not convinced that we should remove this requirement--that would constitute a fairly dramatic change in the laws on prescription--in these circumstances.
During consultation respondents told us that the position on Newtown Common, and other similar places, may not be typical. We have been told that elsewhere landowners have been granting easements for access over their land for many years without problems; also, in some areas, landowners are happy for property owners to drive across their land without charge in the full knowledge that no legal right is being acquired. It is unfortunate that a few landowners have been demanding high charges for granting a right of access. However, this is not necessarily the position in all areas.
Our proposals take account of older properties. As I made clear on Report, the Government accept that there is a case for a reduced compensation payment for such properties. We propose that the regulations should state that the maximum compensation payment for residential properties built before 1st December 1930 should be 1 per cent of the value of the property where there have been no material changes. This is a very substantial reduction from the amount that owners can currently expect to be asked to pay.
As I have said to the House, we accept that the problem of vehicular access over common land needs addressing. Our objective is to create a fair balance between the aspirations of property owners and the rights of landowners. We believe that our proposals for a tiered system of compensation, at rates substantially lower than would otherwise have been paid and where older properties are more favourably treated, achieve this balance.
The noble Earl, Lord Selborne, suggests that it would be a considerable imposition for a property owner to pay 1 per cent as an insurance in case a court does not at a later date uphold a claim for a prescriptive right. That is an issue that we intend to cover in the regulations. We do not want the time limits that are imposed in the regulations to work against a property owner who believes that he has a prescriptive right but needs time to prove it. That was another point that the noble Earl, Lord Selborne, made in moving the amendment.
We have suggested that property owners should have six months from the date when access is challenged or six months from Royal Assent, whichever is the later, to lodge a claim. We shall look at those time limits again. There will have to be some kind of time limit or the scheme could be open to abuse. However, I am sure that the remarks of the noble Earl, Lord Selborne, will be taken into account when framing the regulations.
The regulations are being made in response to legitimate concerns raised in this House. I have made clear at all times that the debates in the House are being considered in the framing of the regulations. We have given our ideas as to what those regulations should contain but we shall also pay serious attention to the points raised today before the regulations are finalised. I do not believe that it would be right to move from the considered tiered structure that we propose to a further structure. To move to a nil or nominal payment would result in a breach of the existing law of prescription.
The Earl of Selborne: My Lords, when moving the amendment I accepted that I was unlikely to get away with a nil payment proposal and that the law would look doubtfully on a presumption of a right of way.
I have accepted the principle of tiered payment. However, I ask the Government to recognise that the owners of houses built before 1906--I do not think that it is asking too much to suggest that those houses would have had vehicular access--will have some difficulty in proving that they have a right. If they are able to do so, there is no problem. But if they cannot do so, I suggest that those houses are in a different position from those built before 1930. When the regulations are framed, I hope that that point will be borne in mind. If the situation were recognised, that would be appreciated by the relatively small number of people involved. Within the tiers already agreed by the Minister, perhaps there could be a third tier involving a lower sum.
("(3) In section 300 of that Act (right of local authorities to use vehicles and appliances on footways and bridleways), in subsection (1) after "verges," there is inserted "for preventing or removing obstructions to them or otherwise preventing or abating nuisances or other interferences with them,".
(4) In section 21(2)(b) of the Road Traffic Act 1988 (defence to charge of driving or parking on cycle track for highway authority vehicles), after "verges" there is inserted ", or the preventing or removing of obstructions to the cycle track or the preventing or abating in any other way of nuisances or other interferences with the cycle track,".").