COUNTRYSIDE AND RIGHTS OF WAY BILL
Third Supplementary Memorandum from the
Department of the Environment, Transport and the Regions
1. The Countryside and Rights of Way Bill was brought
from the House of Commons on 16 June 2000. The Department submitted
its memorandum on the delegated legislative powers under the Bill
to the Committee on 26 June. The Committee reported thereon in
its 24th Report of 4 July. On 10 July the Government submitted
a supplementary memorandum in respect of one additional delegated
power proposed for Part I of the Bill. The Committee reported
thereon in its 26th Report of 19 July. On 18 July a second supplementary
memorandum was submitted dealing with amendments to or concerning
delegated powers in Parts II, III, IIIA (now IV) and IV (now V).
The Committee reported thereon in its 27th Report of 25 July.
2. This third supplementary memorandum deals with
amendments tabled by the Government for consideration at Report
stage. It identifies new delegated powers, amendments to some
of those already identified and explained to the Select Committee
in earlier memoranda and powers deleted in response to the Committee's
recommendations in its 24th Report. The text of these amendments
is annexed to this memorandum.
PART I: ACCESS TO THE COUNTRYSIDE
Chapter I: Right of Access
Clause 2(1)/Schedule 2 ( Amendment 47)
3. Paragraph 4(2) of Schedule 2 is a power to amend
by regulations the period specified in paragraph 4(1) with respect
to dogs on leads on access land. As noted in Lord Whitty's letter
to the Chairman of 23 October (copy annexed hereto) this power
is deleted as recommended by the Committee at paragraph 13 of
its 24th Report.
Clause 17: byelaws (Amendment 89)
4. Clause 17 confers on access authorities a byelaw
making power. This was described in paragraph 32 of the 26 June
memorandum. The amendments insert a new subsection (6A) which
provides that byelaws under clause 17 may be made either with
respect to land which is access land or land that the access authority
is satisfied will become access land. Byelaws may not be confirmed,
however, until the land is access land.
5. The amendment is intended to enable access authorities
to make byelaws at an earlier stage, to diminish any delay between
the commencement of access and the commencement of byelaws.
Chapter II: Exclusion or restriction of access
Clause 21: Exclusion or restriction at discretion
of owners and others (Amendment 116)
6. Clause 21(7) is a power to vary the days on which
an 'entitled person' is not permitted to effect a discretionary
exclusion or restriction. The power was referred to at paragraph
34 of the 26 June memorandum. As noted in Lord Whitty's letter
referred to above, this power is deleted in accordance with the
Committee's recommendation at paragraph 7 of its 24th Report.
Chapter I: Right of access
Clause 2(1)/Schedule 2 (Amendment 148)
7. Paragraph 3 of Schedule 2 is a power to amend
the list of restrictions in paragraph 1 and the associated definition
provisions in paragraph 2. This power was the subject of a recommendation
by the Committee in its 24th Report. The recommendation was that
the power should be deleted (see paragraph 12).
8. The Government responded to this recommendation
in Lord Whitty's 23 October letter to the Chairman. The Government
does not accept the recommendation that the power be deleted,
for the reasons set out by Lord Whitty in that letter. The Committee
noted that if this power were to remain in the Bill, it ought
at least to be made subject to the affirmative resolution procedure.
Accordingly, an amendment has been tabled to clause 41 (previously
clause 40) such that regulations under paragraph 3 shall not be
made unless a draft has been laid before, and approved by a resolution
of, each House of Parliament: clause 41(3).
PART II: PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC
Schedule 5: paragraph 7 (Amendment 159)
9. An amendment to section 57(1) of the Wildlife
and Countryside Act 1981 will remove the source of the power to
prescribe by regulation the scale of the map accompanying an order
modifying a definitive map from this subsection. The power to
so prescribe is then achieved by an amendment to section 57(2).
This rearrangement is effected by additional provisions in paragraph
7 of Schedule 5 to the Bill (paragraphs 7(1A) and (1B)). The amendments
mean that regulations may prescribe not only the scale of maps
prepared under section 57(1) but also, the scale of consolidated
maps under the new section 57A(1), the latter of which is inserted
by paragraph 8 of Schedule 5.
Schedule 6: paragraph 1 (Amendment 168)
10. An amendment to the Highways Act 1980 inserts
the new section 31A. Section 31A(1) requires the appropriate council
to keep in such manner as may be prescribed, a register containing
such information as may be prescribed with respect to maps and
statements deposited and declarations lodged with that council
by owners of land as regards ways over their land (see section
31(6) of the 1980 Act). Section 31A(2) gives power for regulations
to be made regarding keeping the register in more than one part
and subsection (3) empowers the Secretary of State to make regulations
with respect to the removal of entries from the register or any
part of the register.
11. The 26 June memorandum contains a general description
at paragraphs 47 to 51 of regulation making powers in the 1980
Act and the 1981 Act insofar as amendments effected by the Bill
Schedule 6: paragraph 17A (Amendment 181)
12. Section 344 of the 1980 Act (Application to Isles
of Scilly) is amended at subsection (2)(a) by the insertion of
the new sections 135A and 135B into the list of provisions in
respect of which the Secretary of State may by order under section
344(3) (discussed at paragraph 114 of the 26 June memorandum)
apply them to the Isles. This is effected by the insertion of
paragraph 17A into Schedule 6 to the Bill. New section 135A and
135B of the 1980 Act are described and explained at paragraph
103 of the 26 June memorandum.
Clause 65: Erection or improvement of stiles,
etc. (Amendment 197)
13. An amendment to clause 65 inserts a reference
to the new section 147ZA (Agreements relating to improvements
for benefit of persons with mobility problems) of the 1980 Act
into the same provision of the 1980 Act as discussed in the previous
paragraph - that is, section 344(2)(a).
PART III: NATURE CONSERVATION AND WILDLIFE PROTECTION
Schedule 9: paragraph 1 (Amendments 210 and 211)
14. The amendments introduce at paragraph 1 of Schedule
9 of the Bill the new section 28R of the Wildlife and Countryside
Act 1981. Section 28R(1) empowers English Nature (or the Countryside
Council for Wales) to make byelaws for the protection of sites
of special scientific interest (SSSIs). Such byelaws may also
apply to Crown land which is, or forms part of, a SSSI if the
appropriate authority consents: amendment to paragraph 6 of Schedule
9 effecting an amendment to section 67 of the 1981 Act.
15. Under section 28R(2) the various purposes for
which byelaws may be made under section 20 of the National Parks
and Access to the Countryside Act 1949 are applied to SSSI byelaws,
together with the restriction that such byelaws are not to interfere
with the exercise by any person of a right vested in him as owner,
lessee or occupier of land that is a SSSI. Further, a right to
compensation contained in section 20(3) is to apply with respect
to SSSI byelaws.
16. Finally, section 28R(2)(b) ensures that the standard
provisions regarding the making of byelaws also apply to SSSI
byelaws, by applying section 106 of the 1949 Act. Section 28R(2)(b)
additionally applies section 107 of the 1949 Act, which augments
the compensation provision in section 20(3), already attracted
by section 28R(2)(a).
PART IV: AREAS OF OUTSTANDING NATURAL BEAUTY
Schedule 13: paragraphs 1 and 5 (Amendment 239
17. The delegated powers contained in Part IV (previously
Part IIIA) of the Bill were described and explained in the 2nd
supplementary memorandum at paragraphs 20 et seq. The power to
establish by order a conservation board is referred to at paragraph
21 of that memorandum. The relevant clause now appears as clause
79(1), supplemented by subsection (4). Schedule 13 is also relevant,
dealing, inter alia, with the status and constitution of boards.
18. Paragraph 3 of Schedule 13 will be amended so
that an English conservation board will have such number of parish
members as may be specified in the 'relevant order' (defined in
paragraph 1 of that Schedule). Instead of being appointed by the
Secretary of State, these members are to be appointed in accordance
with the provisions of the relevant order by either parish councils
or parish meetings. This will be achieved by amendment to paragraph
5(1) of Schedule 13.
PART V: MISCELLANEOUS AND SUPPLEMENTARY
Clause (Local access forums) (Amendment 253)
19. This is a new provision dealing with what will
be known as "local access forums". The forums will have
an advisory function in relation to the improvement of public
access to land for the purposes of open air recreation and enjoyment
of the land: subsection (4). They will advise the local highway
authority and for National Parks, the National Park authority,
as well as any body exercising functions under Part I in relation
to the subject land: subsection (4). Subsection (6) sets out the
factors to be taken into account by forums when carrying out their
20. The Secretary of State and the National Assembly
for Wales may make regulations governing the establishment by
local highway authorities and National Park authorities (to be
known as 'appointing authorities') of local access forums for
their area (or each part of their area): subsection (1). However,
such regulations may not be made with respect to an area (or part
of an area) for which the Secretary of State (as respects England)
or the NAW (as respects Wales) has directed that subsection (1)
does not apply: subsection (8).
21. Subsection (4)(d) provides that the Secretary
of State and the NAW may make regulations that prescribe other
bodies to whom a particular local access forum is to provide advice.
Subsection (4) also gives the Secretary of State and the NAW the
power to prescribe by regulation additional subject matter in
respect of which a local access forum for a particular area shall
advise. These powers help to provide the flexibility for which
the forums have been introduced. Different areas will have different
characteristics (nature and amount of access land, existence of
other publicly accessible land, access land owned by the Crown,
prevailing land use etc.) and these powers will enable the forums
to suit the characteristics prevalent in a particular area.
Clause (Local access forums: supplementary) (Amendment
22. This clause amplifies the regulation making powers
in clause (Local access forums). Subsection (3) of clause
(Local access forums) provides that the members of a forum
shall be appointed by an appointing authority in accordance with
regulations. Subsection (1) of clause (Local access forums:
supplementary) provides that such regulations may permit appointing
authorities to appoint members appearing to be representative
of persons of a specified description or of any specified body.
Subsection (1) also empowers regulations to provide for the establishment
of joint access forums.
23. Subsection (1) is designed to facilitate the
flexibility and responsiveness of local access forums to local
24. Subsection (2) provides that the regulations
made under clause (Local access forums) must provide for
the appointment of persons who appear to be representative of
users of local rights of way or the right of access in clause
2; and owners/occupiers of access land or land over which local
rights of way subsist. The importance of having these groups represented
on forums is underlined by the provision in subsection (4) whereby
when making regulations under (Local access forums), the
Secretary of State and the NAW must have regard to the desirability
of maintaining a reasonable balance between the number of user
representatives and owner/occupier representatives on a forum.
25. Regulations made under clause (Local access
forums) may include such supplementary or incidental provisions
as appears to be necessary or expedient: subsection (5).
26. Regulations made under clause (Local access
forums) are to be made by statutory instrument and as respects
the Secretary of State, are to be subject to negative resolution.
In the light of the various provisions governing the nature and
subject matter of the regulations under clause (Local access
forums), especially as amplified by clause (Local access
forums: supplementary), the Government considers the negative
resolution procedure to be the appropriate degree of Parliamentary
31 October 2000