§ (" .——(1) Each countryside body shall, within five years after the commencement of this section, and subsequently at intervals of not more than ten years, prepare and publish a statement containing its assessment of—
- (a) the adequacy of its management, in exercising its duties and powers under Part I of this Act, of each of the matters specified in subsection (2), and
- (b) the action it proposes to take, if any, to improve its management of these matters.
§ (2) The matters referred to in subsection (1) are—
- (a) the maping of access land under Chapter I.
- (b) discretionary and permitted closures and restrictions under Chapter II,
- (c) the making of directions under Chapter II,
- (d) the provision of information to the public in relation to Part I, and
- (e) any other matters that may be specified in regulations.
§ (3) Before preparing a statement under this section each countryside body shall consult such persons as may be prescribed in regulations.").
§ The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 147. As I believe we are all aware from the various debates on the establishment of this Bill to give access to everybody, there will be teething problems. These two amendments require a review of the exercise of the powers and duties in relation to the access land by the countryside bodies. Amendment No. 147 proposes a review of the exercise of the powers and duties of the access authorities within five years in both instances.
§ I hope that the Government will be able to support these amendments. I believe that they will consider them to be very wise and sensible.
§ Turning to Amendment No. 147, at earlier stages there were objections to what was then Amendment No. 301 relating to access land management strategies on the grounds that local authorities already had enough plans to prepare and that some of the matters to be covered in the plans lay outwith the remit of the access authorities (Official Report, 9/10/00; cols 11–18).
§ The amendment responds to those criticisms by requiring the authorities to prepare statements, not just plans as such, setting out how they have exercised the special functions and how they plan to improve the provisions in relation to these functions. My parallel amendment requires the same from the countryside bodies. Indeed, these are enormously important amendments.1510
§ In Committee, the discussions around the proposal were well supported by the noble Lord, Lord Williamson, who is unfortunately no longer in his place; and the noble Lord, Lord Jopling, indicated that we should return to the matter on Report, as indeed we have. My noble friend Lord Peel will also speak to these amendments.
§ The Government may realise that they have failed to estimate the impact that the right of access may have on land management practices. There is nothing outrageous in these amendments. If the Government do not like the wording, I hope that at least they may feel able to support the thrust of the amendments, which require the countryside bodies to review the exercise and functioning of the provision they have made and to come back with statements on where they stand and where they see matters going in the future. I beg to move.
§ Earl Peel
My Lords, I strongly support these two amendments. This legislation takes us into uncharted waters. There is no question that it will have a considerable implication for the way in which access land is managed.
There are new opportunities for walkers, and with those come new responsibilities. We shall have to watch closely to see how those responsibilities are regarded by those with the new rights and how the access authority manages the balance—the word "balance" has recurred so often in discussions during the course of the Bill—between the two interests. That will be a crucial test as to how effective the legislation will be in practice.
The ability of the access authorities to get the right messages to the public is essential. Let us not forget—and it is a major fault in the Bill—that there are no statutory requirements for people to go on to access land via access points. It is essential that the messages get through on restrictions, on by-laws and on the ability to implement the provisions in Schedule 2 and Chapter II. It will need to be asked whether all the various constraints, the messages and the whole raft of information that is essential in making the Bill effective is getting through and whether the public are responding effectively.
We have discussed many times the question of dogs and the question of night-time access. All these issues bring new challenges to the countryside. It is essential that we keep close tabs on how the legislation is working in practice.
There is another essential part to my noble friend's amendment; namely, the whole question of the financial provisions. Will they be sufficient to allow the access authorities to carry out their responsibilities? We shall have to wait and see. But without this amendment I do not believe that the structure is in place for us to look carefully and with due consideration—from everyone's point of view, not just that of the landowner but also of the walker—to see whether the Bill is working effectively.
The Government maintain that local authorities already have enough plans to prepare and that, therefore, they do not want to burden them with any 1511 more. But, quite frankly, that is a pretty weak excuse. If there is a good reason for further plans—or, indeed, for a "statement", as specified in the amendment—then so be it. It is only right and proper that such considerations should be taken into account. I strongly support these amendments. They relate to an essential part of seeing how effective this Bill will be. As I have already said, its implications will be very significant.
§ Baroness Farrington of Ribbleton
My Lords, we explained in Committee that we do not believe that it is desirable to place an additional duty on access authorities to publish an assessment of how they have used their powers under Part I. Amendment No. 146 would require the countryside bodies to publish a similar document outlining how they have carried out their various duties and powers under the Bill.
The Countryside Agency is already required to produce an annual report explaining how it has fulfilled its statutory duties. The agency must do so every year rather than every 10 years, as this amendment would require. The publication of the annual report is a requirement under Schedule 13 to the Wildlife and Countryside Act 1981. Schedule 13 currently refers only to the Countryside Agency's functions under the 1949 Act, the Countryside Act 1968 and the 1981 Act. We therefore propose to bring forward an amendment to ensure that the agency's functions under this Bill are also covered. The Countryside Council for Wales must produce an annual report under Schedule 6 to the Environmental Protection Act 1990. This report relates to all the functions of the council and will include its functions under this Bill.
Amendment No. 147 is similar to an amendment tabled in Committee. It would require access authorities to publish an assessment of the use that they have made of their powers under Part I of the Bill. We explained in Committee that it is neither necessary nor desirable to require authorities to produce yet another statutory assessment of their powers. Local authorities have a range of powers covering the whole spectrum of their responsibilities which they may use to assist them in fulfilling their functions. We expect them to assess and make good use of their new powers under Part I of this Bill, just as they do in relation to other powers. As with the majority of their powers, there is no need for a special statutory duty to be imposed to require such an assessment.
The proposed duty in this amendment is not dissimilar to the duty in Part II to prepare and publish rights of way improvement plans. However, as my noble friend Lord McIntosh explained in Committee, local highway authorities have specific duties to carry out in relation to rights of way which are far more self-contained than powers relating to access land. The functions of access authorities in relation to access must be seen as part of a broader picture in conjunction with the functions of the countryside bodies and, in particular, with those of the relevant authorities. For example, the relevant authorities have 1512 an important role to play in access through exclusions and restrictions that will provide much of the basis for the exercise of the functions of access authorities to make by-laws and appoint wardens. We stress that access authorities should make careful use of their new powers under the Bill. They need to be able to be responsive to situations as they arise and not be bound by a statutory plan.
The noble Earl, Lord Peel, said that it is important for us to look carefully at such issues. We believe that scrutiny is extremely important and that local access forums will be able to play a key role in reviewing the use that the authority is making of its powers. We also believe that that is the best approach to ensuring that all local authorities properly exercise their powers. I hope that the noble Baroness will not press the amendment.
§ Baroness Byford
My Lords, before the noble Baroness sits down I wish to clarify a point. I thought I heard her say that the Government would consider the amendment further and might bring back a measure at a later stage. Did I mishear the noble Baroness?
§ 1 a.m.
§ Baroness Farrington of Ribbleton
My Lords, I said that the annual report which is required under Schedule 13 to the Wildlife and Countryside Act 1981 specifies those functions which must be referred to in the report. I undertook to bring forward an amendment to add the provisions of this legislation to that specification.
§ Baroness Byford
My Lords, I am grateful for those comments. I thank the noble Baroness for that clarification and for saying that the Government will consider whether some measures need to be added to those that are required to be mentioned in the annual report. However, I am slightly surprised that the Government do not think it a good idea every so often—in addition to the annual report—to review the framework on which the Bill is based.
§ Baroness Farrington of Ribbleton
My Lords, we do not believe that it is right to lay down in legislation the rationale for strategic planning in that context. We believe that there will be full and essential monitoring through the annual report. However, in saying that, we do not preclude the body we are discussing from making a judgment in this context. However, we and the public will be kept fully informed through the annual report.
§ Baroness Byford
My Lords, I shall read what the noble Baroness has said. I have no argument with what she has said. All I sought to indicate was that one usually reviews the operation of whatever business or organisation one is involved in. As I say, I shall read Hansard carefully tomorrow morning. Again I thank the noble Baroness for indicating that the Government may seek to add further provisions in this area. At this stage I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 147 not moved.]
§ Clause 41 [Orders and regulations under Part I]:
Lord Whitty moved Amendments Nos. 148 and 149:
Page 25, line 11, leave out from beginning to ("has") in line 12 and insert—
("(3) No order under section 3 or regulations under paragraph 3 of Schedule 2 shall be made by the Secretary of State unless a draft").
Page 25, line 15, after ("any") insert ("other").
§ On Question, amendments agreed to.
§ Clause 42 [Interpretation of Part I]:
Lord Whitty moved Amendment No. 150:
Page 26, line 1, leave out (" 1(2)") and insert (" 1(3)").
§ On Question, amendment agreed to.
§ Schedule 4 [Minor and consequential amendments relating to Part I]:
§ [Amendment No. 151 not moved.]
§ Clause 45 [Restricted byway rights]:
Lord Whitty moved Amendment No. 152:
Page 27, line 34, at end insert—
("(8A) The powers conferred by section 92(5) must be so exercised as to secure that nothing in section 44 or this section affects the operation of section 53 or 54 of, or Schedule 14 or 15 to, the 1981 Act in relation to—
(8B) In subsection (8A) "relevant order" means an order which relates to a way shown in a definitive map and statement as a road used as a public path and which—
§ The noble Lord said: My Lords, in moving Amendment No. 152 I wish to speak also to Amendment No. 153. This is a significant point in that we now finally move to Part II.
§ Amendment No. 152 relates to the transitional period between enactment of the Bill and the commencement of Clause 44 by orders made by the Secretary of State or the National Assembly for Wales under Clause 92. On commencement of Clause 44, restricted byway rights will be created over each way shown on a definitive map as a road used as a public path (RUPP).
§ The rights attached to RUPPs are uncertain and local highway authorities are presently required to research each one and to reclassify it as a footpath, bridleway or byway open to all traffic. That obligation will cease when Clause 44 takes effect. Until then, authorities must continue to research their RUPPs and anyone with new evidence of the status of such ways will continue to be able to apply to their local authority for an order modifying the definitive map accordingly.1514
§ Amendment No. 152 would require that such orders, and applications for them, which are made before commencement of Clause 44 but which have not taken effect should be processed to a final determination.
§ Amendment No. 153 relates to the provision in Clause 46 whereby each road used as a public path over which restricted byway rights are created is to become maintainable at the public expense. It is our intention that private liabilities, for example liabilities of the private landowner, to maintain a RUPP, which is in fact a footpath or bridleway, should be extinguished. We believe it necessary to clarify that because the creation of a public liability to maintain a highway does not necessarily extinguish a private liability. Concurrent public and private maintenance liabilities are not uncommon.
§ The express provision in Amendment No. 153 would apply only to those RUPPs which are footpaths or bridleways because new rights will be created over them by the Bill. The amendment would not apply to RUPPs which carry full vehicular rights because no additional rights will be created over them and there is no reason why these should be treated any differently from RUPPs which have been reclassified as byways open to all traffic after a case by case investigation under current legislation. I beg to move.
§ Baroness Miller of Chilthorne Domer
My Lords, both amendments seem to be helpful and streamline the process. We welcome them.
§ On Question, amendment agreed to.
§ Clause 46 [Provisions supplementary to ss. 44 and 45]:
Lord Whitty moved Amendment No. 153:
Clause 46, page 28, line 5, at end insert—
("(1A) As from the commencement of that section, any liability, under a special enactment (within the meaning of the Highways Act 1980) or by reason of tenure, enclosure or prescription, to maintain, otherwise than as a highway maintainable at the public expense, a restricted byway to which subsection (1) applies is extinguished.").
§ On Question, amendment agreed to.
§ Schedule 5 [Definitive maps and statements and restricted byways]:
Lord Rotherwick moved Amendment No. 154:
Schedule 5, page 68, line 33, at end insert—
("( ) In subsection (2)(a) for "as appear to them to be" there is substituted "as are".
( ) In subsection (2)(b) for "as appear to them to be" there is substituted "as are".")
§ The noble Lord said: My Lords, in moving the amendment, I speak to Amendments Nos. 156 to 158, 160, 161, 169, 170 and 171. I have already declared an interest as a landowner and manager.
§ The proposed change of wording would have the effect of reinforcing the fact that the highways authority's function is to record that a public right of way exists, not to carry out a judicial function and attempt to create a public right of way which does not exist, without compensation to the owner.1515
§ Amendment No. 156 introduces the new Section 53(3)(b). A declaration by a court or other independent tribunal established by law for the purpose would mean that the decision as to whether there is a public right of way in existence would have to be made by a properly constituted, competent and independent tribunal, thereby taking county councillors and the Secretary of State out of the equation. The House of Lords debate on 9th October focused on the possibility of creating a completely independent environmental court that would comply with the Convention on Human Rights in order to adjudicate rights of way disputes. This concept was also advanced by the DETR's report into the working of the planning inspectorate. The determination of rights of way disputes differs considerably from other environmental matters, as it concerns the civil rights and the public rights of citizens, not regulations of planning control.
§ The proposed new Section 53(3)(b) would ensure that just decisions are reached on the evidence available—not by continuing to show as rights of ways those which are private but which because of the lack of notification of claims under the National Parks and Access to the Countryside Act to the landowner were included on the definitive map and statement without his knowledge. Until relatively recently it was impossible to remove a right of way from the map. Under the Wildlife and Countryside Act the burden of proof that the landowner must satisfy in order to have a right of way expunged from the map is unrealistic and unfair.
§ The proposed new Section 53(3)(c) is unobjectionable, as it would make it expressly clear that the use by the public of an erroneously recorded right of way does not count or give rise to a presumption of dedication to operate. Clearly, during that period the landowner would be prevented by the operation of the law from blocking the right of way. It would therefore be unjust to allow the period to count towards any presumption.
Amendments Nos. 157 and 158 are needed for consistency. They are substantially the same as Amendment No. 154 and would remove the discretion given to county councils on whether to record a public right of way on a definitive map and statement. Words such as "in the opinion of the authority" or "as appears to them" often appear in statute. Given the certainty of Amendment No. 156, there is no need to give the county council discretion on whether to record them. It must record if an event specified in Amendment No. 156 has occurred. Replacing the words,
as appear to them to be",
with "as are" in Section 53(2)(a) and (b) would replace a subjective test with an objective one.
§ Amendment No. 160 to paragraph 3(1)(b) of Schedule 14 would provide much-needed consultation with the owner of the land before an application was processed by the public authority. There is no current 1516 provision for the owner of the land to be consulted before a modification order is made. That is a serious lapse in basic human rights.
§ The amendments to Schedule 15 to the 1981 Act made by Amendment No. 161 reflect the fact that the function of the Secretary of State is confined to resolving appeals on the accuracy of the recording by the public authority, not ruling on the correctness of a decision on whether a right of way exists. That function will pertain to an independent tribunal.
§ New Section 11(1)(c) reflects the need for reasons to be given for executive decisions to verify their correctness. Again, there is no current requirement for the Secretary of State to give reasons for his decisions. That is particularly important when there is a statutory appeal to the High Court solely on points of law that can be manifest only if a fully reasoned decision is given.
§ Amendments Nos. 169 and 170 to Section 31 of the Highways Act 1980 would remedy the unfair treatment meted out to the landowner by the interpretations of that section. Too many spurious claims have been passed as good because the public authority, the Secretary of State and finally the courts rely on antiquated legislation that had its roots in common law but that has so deviated from it that it has become no more than a pretence to open up private ways.
§ The landowner generally has no defence against such claims which more often than not are brought about many years after a supposed dedicator is dead and buried. While the word of the claimant is usually accepted at face value, the landowner once again has an enormous burden of proof to discharge. Even if he has never seen anybody and there has therefore been no need to erect notices, he is still presumed to have dedicated and his word is disbelieved. That gives rise to many abuses. Some sense should be restored to the provision, in line with the original common law from which it derives. Nowadays the intention of the owner counts for very little. Acts of kindness and generosity are by law taken as generating a legal obligation. The trespasser acquires rights, even he knew that he was committing a wrong in the first place.
§ I turn to Amendment No. 171. New subsection (12) is aimed at putting a stop to claims which, in order to succeed, are delayed before being made. Having carried out all the necessary searches that do not reveal a right of way, a new owner might later be faced with a claim that he cannot defend as it relates to a period in which he was not responsible for the land. Limiting the period in which a claim may be brought will safeguard as far as possible a landowner insofar as the memories of the relevant persons are still relatively recent. I beg to move.
§ 1.15 a.m.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the noble Lord, Lord Rotherwick, for explaining the amendments. I shall try to deal with them in turn as closely as I can, although they do not quite work out that way.
1517 They all relate to Section 53 of and Schedules 14 and 15 to the Wildlife and Countryside Act 1981. Section 53 requires surveying authorities to keep their definitive maps and statements under continuous review and to make such modification orders as appear to them requisite on the occurrence of particular events, such as the creation of a footpath or bridleway through deemed dedication or the discovery of evidence which shows how a right of way that has already been recorded should be changed.
Amendments Nos. 169, 170 and 171 to Schedule 6 to the Bill relate to Section 31 of the Highways Act. That section is concerned with the creation of highways through deemed dedication. We do not believe that this group of amendments is desirable.
Amendment No. 154, which is linked to Amendment No. 156, would amend Section 53(2) of the Wildlife and Countryside Act to enforce the notion that a surveying authority is to make orders only as a consequence, or "as are" requisite in consequence, of legal events or declarations of a court or a tribunal. The discretion of what order can be made is narrowed and a surveying authority would be able to respond accordingly only to a declaration of a court.
We do not believe that it would be at all desirable to remove the duties in question from the local authorities. They are part of local government's wider responsibilities for rights of way; for example, the creation, diversion, closure and maintenance of rights of way which, together with the new functions provided in the Bill, provide a comprehensive legislative basis for improving our rights of way.
Moreover, the current legislation, broadly modelled on legislation introduced in 1949, provides the public with what is generally a relatively cheap and accessible way of modifying the definitive map. Amendment No. 156 would replace it with a procedure which would be more expensive, inaccessible and intimidating, and would undermine the objective of the legislation on definitive maps which is to compile as complete and accurate a record of public rights of way as possible. That aim is all the more important given the provisions in the Bill about the cut-off date and unrecorded rights of way.
A consequence of the amendments is that the cut-off date provisions would need to be completely rethought as they are based on the fundamental assumption of surveying authorities being free to make appropriate modification orders and people being able to apply for such orders.
Amendment No. 156 would remove from surveying authorities the duty and, indeed, the power to make modification orders because of the events in Sections 53(3)(b) and (c) of the 1981 Act. In particular, they would no longer be able to make modification orders on their own volition on the basis of a footpath or bridleway being created by deemed dedication or on the discovery of evidence which showed that the definitive map should be modified, for example, to show a new right of way, or that the status of a right of way already shown should be altered. Instead, modification orders other than legal event orders 1518 could be made only where a court or other independent tribunal established by law had made an appropriate declaration; for example, to the effect that a highway shown in a map and statement should be shown as a highway of another description.
Amendment No. 156 also seeks to insert a new subsection (3A) into Section 53 of the Wildlife and Countryside Act. It aims to prevent the possibility of use of a way wrongly recorded on a definitive map and statement as a public right of way, giving rise to a presumption of dedication or acceptance by the landowner of the way as a public right of way.
We are not entirely clear about the need for this amendment. Dedication of a highway rests on the assumption, or the presumption, of acquiescence on the part of the landowner to the creation of a highway. This notion sits inconsistently with the conclusive effect of the definitive map contained in Section 56 of the 1981 Act because that prevents the landowner from acquiescing, from preventing, particular use of a way on his land. In other words, if a way has been wrongly recorded on a definitive map as a highway, we do not believe that use by the public during that period can create a presumption that the public have a right of way over it. I understand from what the noble Lord, Lord Rotherwick, said that he views Amendments Nos. 157, 158 and 166 as consequential.
Amendment No. 160 would amend Schedule 14 to the Wildlife and Countryside Act 1981. It would have the effect of requiring local authorities to consult landowners on applications for definitive map modification orders before they determine them. We do not believe that additional burden on local authorities to be necessary to safeguard a landowner's interests. Applicants for definitive map orders are already required to give notice to every owner and occupier of any land to which the application relates. Surveying authorities are obliged to take into account any comments made in response to such a notice; otherwise the obligation to serve such notice would appear to serve no purpose. In addition, if a surveying authority makes an order, it too is required to give notice to such owners and occupiers and to advertise the fact that an order has been made before it can be confirmed At this stage landowners and any other interested party have at least 42 days to make their views known. If there are any objections the order goes to the Secretary of State to confirm, after a hearing or public inquiry where again a landowner has an opportunity to inform the decision which is made.
Amendment No. 161 relates to Schedule 15 to the Wildlife and Countryside Act 1981 which sets out the procedure for the confirmation of definitive map modification orders. It would remove the duty on the Secretary of State to hold inquiries (as opposed to hearings) into opposed orders. It would also expressly require him to set out, in writing, the reasoning behind final decisions on whether to confirm an order and make his reasons available to the public. In fact, he already does so. Decision letters are sent to those who have objected or given evidence on their own behalf and to anyone who asks for one.
1519 Amendment No. 170 would strike at the very heart of deemed dedication under Section 31 of the Highways Act 1980. It would remove the practical possibility of Section 31 creating a highway through deemed dedication. Broadly speaking, deemed dedication operates because, in the absence of sufficient evidence to the contrary, you must infer an intention to dedicate a highway on 20 years long use—dedication has to be presumed. The amendment defines as sufficient evidence to rebut the presumption a statement by the landowner that during the relevant years he did not intend to dedicate a right of way to the public at large. Such a statement will be challengeable only on the basis of overt acts on the part of the landowner which are inconsistent with lack on intention to dedicate.
It is the case that deemed dedication operates because the landowner is not entitled to argue that locked away in his or her mind was the thought that he did not intend to dedicate land as a highway. He must adduce some evidence of an overt act such as to show to the public that he had no intention to dedicate. That is a key element of the principle of deemed dedication first introduced in the Rights of Way Act 1932 and carried forward by Section 31 of the Highways Act.
If the landowner is concerned about the issue of public use of a way on his land he has many methods available to him to stop time running, to stop the presumption arising. He can erect appropriate signs; deposit the appropriate documents. He can tell the public that they have no right to be on his land; he can close the path off for one day a year; or he can erect gates.
We have made it clear during debates that the Government are not prepared to agree to anything which would undermine the basis of deemed dedication.
Amendment No. 171 is broadly similar to a proposal in the Government's consultation paper on rights of way which suggested that applications to add a right of way to a definitive map on the basis of 20 years' use should be made within five years of the use being brought into question. The intention was to help streamline the process, but further research indicated that the vast majority of claims are already made within five years. On the other hand, it became clear that a statutory deadline for claims would generate greater dispute in cases where there had been a series of challenges and the landowner argued that a claim was out of time.
At best, therefore, the proposal would produce few benefits; at worst it would make the current system more complicated. Any disputes over the date of the challenge would have to be resolved before the substance of the claim could be investigated and more decisions would be likely to be challenged in the courts. We believe those to be good reasons for not proceeding with the proposal and for the same reasons 1520 we are unwilling to accept Amendment No. 171. I hope that the noble Lord, Lord Rotherwick, will not press the amendments.
§ Lord Rotherwick
My Lords, I thank the Minister for his detailed reply at this late hour. Obviously I am disappointed at his earlier replies that these provisions were not desirable. However, I am a little less disappointed with his last reply. I look forward to reading his detailed reply in Hansard. I am not sure whether it will be included tomorrow; it will probably be the day after. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton moved Amendment No. 155:
Page 68, line 38, at end insert—
("(4A) In subsection (4), after "public path" there is inserted", restricted byway".")
§ The noble Baroness said: My Lords, in moving Amendment No. 155 I shall speak also to Amendments Nos. 174, 180, 190 and 199. This group of amendments would correct a small number of minor errors in the Bill.
§ Amendment No. 155 relates to Schedule 5 to the Bill. Among other things, Schedule 5 makes a number of consequential amendments to the Wildlife and Countryside Act 1981 to take account of the creation of restricted byways as a new category of right of way. The amendment would add "restricted byway" to Section 53(4) of the 1981 Act which provides that an order modifying a definitive map may include the addition to the statement of particulars of the position and width of a right of way and any conditions or limitations affecting the public right of way over it. Section 53(4) does not currently cover restricted byways.
§ Amendment No. 174 to Schedule 6 to the Bill relates to a new Section 119B of the Highways Act 1980 which enables a right of way to be diverted to prevent crime or to increase school security. New Section 119B(4) empowers a local highway authority to create such new right of way as is requisite for effecting the diversion and to extinguish as much of the existing highway as is requisite as mentioned in Section 119B(1) (the purposes for which diversions may be made). However, Section 119B(1) does not use the term "requisite". The amendment would therefore replace this term in Section 119B(4) with the words "for the purpose or'. That is consistent with the parallel provisions in new Section 119D(3)(b) relating to SSSI diversions.
§ Amendment No. 180 to Schedule 6 relates to consequential amendments to Section 329 of the Highways Act 1980 which defines various terms used in that Act. The amendment would correct an error whereby the definition of school for the purposes of the Bill was inserted in the wrong alphabetical order in Section 329(1).
§ Amendment No. 190 relates to Clause 60. This enables a member of the public to serve notice on a local highway if a right of way is obstructed. The 1521 amendment would clarify the intention that Clause 60 should not apply to obstructions which consist of disrepair of a highway such as vegetation growing out of the surface. Section 56 of the Highways Act 1980 already provides a means of enforcing the relevant duties. However, the exclusion in the Bill currently applies only to orders made by the magistrates' court under Section 56(4). Orders may also be made by the Crown Court under Section 56(2). Amendment No. 190 would ensure that the exclusion applies to those orders as well.
§ Amendment No. 199 relates to Clause 67 which defines various terms for the purposes of Part II of the Bill. The amendment would qualify Clause 67 to ensure that the interpretation provision will not apply where a contrary intention appears. That is consistent with the approach taken in Clause 42 to the interpretation of terms used in Part I. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 156 to 158 not moved.]
§ 1.30 a.m.
Baroness Farrington of Ribbleton moved Amendment No. 159:
Schedule 5, page 73, line 7, at end insert—
("(1A) In subsection (1), the words "on such scale as may be so prescribed," are omitted.
(1B) In subsection (2), for "section 55(3)" there is substituted "subsection (1) or any other provision of this Part".").
§ The noble Baroness said: My Lords, in moving Amendment No. 159, I shall speak also to Amendments Nos. 162, 163 and 260.
§ Amendment No. 159 is a technical amendment which would extend to all definitive maps made under Part III of the Wildlife and Countryside Act 1981 the current power for the Secretary of State or the National Assembly for Wales to make regulations prescribing the scale on which maps prepared under Section 55(3) of the 1981 Act should be drawn. Section 55(3) relates only to maps prepared for areas for which no survey under the National Parks and Access to the Countryside Act 1949 was begun or where any such survey was abandoned. The objective of the amendment is to facilitate, in particular, implementation of new Section 57A which is inserted into the 1981 Act by Schedule 5 to the Bill. This enables local authorities to consolidate their definitive maps following, for example, local government boundary changes. Amendment No. 260 is consequential.
§ Amendments Nos. 162 and 163 arise from an undertaking we gave in Committee to consider amendments tabled by the noble Baronesses, Lady Miller, Lady Hamwee and Lady Scott, aimed at filtering out irrelevant objections to orders modifying definitive maps. We recognise problems in the current legislation which arise from the effect of the Lasham Parish case. There is no obligation on a person objecting to a definitive map order to specify the grounds of his objection, or for those grounds, if specified, to be legally relevant.1522
§ The purpose of a definitive map is to provide an accurate record of public rights of way. Decisions on definitive map orders are a matter of fact and law and do not call for judgments to be made on whether, for example, the recording of a footpath or bridleway on a definitive map would cause environmental damage. However, Schedule 15 to the Wildlife and Countryside Act 1981 requires the Secretary of State or the National Assembly for Wales to hold a public inquiry or hearing into any opposed definitive map order even if the only objections are ones which are not material to the decision on whether or not to confirm the order.
§ The amendment tabled by the noble Baroness, Lady Miller of Chilthorne Domer, during Committee, would have required the grounds on which objections were made to be specified. It would also have enabled the local authority which made the order to disregard any objection which it considered incapable of affecting a decision on whether or not to confirm the order.
§ The Government agree on the need for a change in the current law. However, as we explained during Committee, we do not believe that the decision on whether or not an objection is relevant should be taken by the authority which made the order. Amendment No. 163 would therefore leave the decision to the Secretary of State or the National Assembly for Wales.
§ The amendment would require that any objection or representation in respect of a definitive map modification order should include particulars of the grounds on which the objection or representation is made. It would also empower the Secretary of State or the National Assembly for Wales to decline to hold an inquiry or hearing into an opposed order if he (or it) considered that the only objections or representations which have been made and not withdrawn are not relevant to a decision on whether or not to confirm an order.
§ Amendment No. 163 would apply not only to objections made to a local authority's order, but also to objections made to proposals by the Secretary of State or the National Assembly for Wales to confirm an order with modifications of a kind which require the proposals to be advertised and a further inquiry held if they are opposed. Amendment No. 162 is consequential on Amendment No. 163. I beg to move.
§ Baroness Miller of Chilthorne Domer
My Lords, I thank the Government for coming back with Amendment No. 163 in response to the concerns we voiced in Committee. Although it is different from the amendment we tabled on that occasion, we believe that it will cut out the objections and representations which serve merely to expend more public time and money. They were irrelevant but, under the old process, nevertheless had to be heard. We are pleased with the development.
§ On Question, amendment agreed to.
§ [Amendments Nos. 160 and 161 not moved.]
Baroness Farrington of Ribbleton moved Amendments Nos. 162 and 163:
Schedule 5, page 74, line 31, leave out ("In").
Schedule 5, page 74, line 31, at end insert ("is amended as follows.
(2) In paragraph 3, in sub-paragraph (1)(c) after "order" there is inserted ", which must include particulars of the grounds relied on,".
(3) In sub-paragraph (9) of that paragraph—
(4) In paragraph 7, in sub-paragraph (2) after "shall" there is inserted ", subject to sub-paragraph (2A),".
(5) After sub-paragraph (2) of that paragraph there is inserted—
(2A) The Secretary of State may, but need not, act as mentioned in sub-paragraph (2)(a) or (b) if, in his opinion, no representation or objection which has been duly made and not withdrawn relates to an issue which would be relevant in determining whether or not to confirm the order, either with or without modifications.
(6) In sub-paragraph (3) of that paragraph, for "the person appointed to hold the inquiry" there is substituted "any person appointed to hold an inquiry".
(7) In paragraph 8—
(b) if any representation or objection duly made is not withdrawn (but subject to sub-paragraph (3)), hold a local inquiry or afford any person by whom any such representation or objection has been made an opportunity of being heard by a person appointed by the Secretary of State for the purpose; and
(c) consider the report of any person appointed to hold an inquiry or to hear representations or objections.
§ (3) The Secretary of State may, but need not, act as mentioned in sub-paragraph (2)(b) if, in his opinion, no representation or objection which has been duly made and not withdrawn relates to an issue which would be relevant in determining whether or not to confirm the order in accordance with his proposal.
§ (4) Sub-paragraph (2)(a) shall not be construed as limiting the grounds which may be relied on at any local inquiry or hearing held under this paragraph."
§ On Question, amendments agreed to.
§ Lord McIntosh of Haringey
My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at twenty-four minutes before two o'clock.