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Clause 7
Amendment made: No. 29, in page 4, line 29, leave out from "hearing" to end of line 31 and insert ", or".--[Mr. Kevin Hughes.]
Clause 9
Amendment made: No. 139, in page 6, line 16, at end insert--
'( ) A document purporting to be certified on behalf of the appropriate countryside body to be a copy of or of any part of a map in conclusive form issued by that body for the purposes of this Part shall be receivable in evidence and shall be deemed, unless the contrary is shown, to be such a copy.'.--[Mr. Kevin Hughes.]
Clause 10
Amendment made: No. 140, in page 6, line 17, leave out "has" and insert "have".--[Mr. Mullin.]
Clause 12
Mr. Mullin: I beg to move amendment No. 141, in page 7, line 36, at end insert--
'( ) The use of any land by the inhabitants of any locality for the purposes of open-air recreation in the exercise of the right conferred by section 2(1) is to be disregarded in determining whether the land has become a town or village green.'.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: Amendment No. 8, in clause 13, page 8, line 7, leave out "natural".
Government amendments Nos. 142 to 144, 189 and 211.
Government new clause 23--Effect of Part I on powers to stop up or divert highways.
Government amendments Nos. 220 to 224.
7.15 pm
Mr. Mullin: Amendment No. 141 was inspired by an Opposition amendment tabled in Committee to clarify the position on village greens. Under existing legislation, it is possible to register land as a village green where it has been used by local inhabitants for lawful sports and pastimes as of right for not less than 20 years.
The amendment makes it clear that the new right of access is not intended to result in prescriptive rights being acquired over access land. It ensures that the use of any land by virtue of the right of access under the Bill will not be able to support a claim for the registration of a village or town green under the Commons Registration Act 1965. The amendment makes similar provision in this respect for village greens as clause 12(3) of the Bill now makes for public rights of way.
Mr. Bennett: On amendment No. 141, has the Minister seen the briefing from the Countryside Agency, which suggests that the Government have made a mess of the amendment? Is he doing anything to meet its concerns on this point?
Mr. Mullin: I have not seen the briefing from the Countryside Agency on the subject, but if I get any further information, I shall come back to my hon. Friend.
Amendment No. 142 follows up a point raised in Committee. My right hon. Friend explained that in response to amendments tabled by the hon. Members for Somerton and Frome (Mr. Heath) and for Meirionnydd Nant Conwy (Mr. Llwyd), the Government would consider whether further clarification was needed regarding the liability position in relation to trees and plants. The amendment makes it clear that occupiers will bear no liability towards those exercising the right of access in relation to any plant, shrub or tree.
The need for amendments Nos. 143 and 144 was drawn to our attention by Opposition Members--we are nothing if not a listening Government. The amendments will exclude from the new right of access land to which there is already a public right of access under section 19 of the Ancient Monuments and Archaeological Areas Act 1979--that is, monuments in the ownership or guardianship of the Secretary of State, English Heritage, or local authorities. This is in accordance with our policy of excluding from the ambit of Part I land to which the public has an existing statutory right of access.
Amendments Nos. 189, 211, and 220 to 224 will allow for the retention on the statute book of Part V of the National Parks and Access to the Countryside Act 1949. As many hon. Members will know, the 1949 Act was a landmark in the history of countryside access. As amended by the Countryside Act 1968, it provided for access agreements and access orders to be made over mountain, moor, heath, down, river and canalside, foreshore and woodland--a far more extensive interpretation of "open country" than is contained in the Bill before us. However, the 1949 Act failed to open up extensive areas of open country to the public. About 50,000 hectares of agreement land have been negotiated under the Act in the past fifty years, almost entirely over moorland. On the eve of a statutory right of access to mountain, moor, heath, down and registered common land, the 1949 Act still offers some merits that we wish to retain. That is the purpose of the amendments.
Finally, Government new clause 23 proposes to limit the effect of the new right of access created by part I on statutory powers to stop up or divert a highway or any highway. In a nutshell, the new clause proposes to stop the right of access being used as an excuse to stop up existing rights of way. I commend the amendments to the House.
Mr. Green: I rise to speak principally to amendment No. 8, but it would be churlish not to acknowledge our gratitude to the Government for accepting what the Minister described as the inspiration of some of our amendments--and, I hope, speeches to them--in Committee.
Like the hon. Member for Denton and Reddish (Mr. Bennett), I have an advantage over the Minister, in that I have seen the Countryside Agency's objection to the amendment. The agency makes the point that while it supports the aims of the amendment, as worded, the amendment
- could make it impossible to register access land as a green in future even where it has a long pattern of qualifying use by local inhabitants. Caselaw requires evidence of 20 years' qualifying local use right up to the date of application to register land as a green. The amendment as worded could prevent an application in, say, three years' time to register an established green from succeeding. A saving is required to avoid this unintended effect.
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Perhaps the Minister will wish to return to this matter.
- any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape.
One has a lurid vision of one of the few irresponsible landowners setting out closely planted rows of cactuses round the edge of one of the small parcels of access land that the Minister is keen on, thus making it impossible to gain entry. Since these plants would be natural features, they would be fine under the terms of the Bill. I know what the Government are seeking to achieve through the amendment, but I am sure that they will not achieve it. If they do, there will be some unintended bad consequences as well. I suspect that those in another place may wish to return to the issue.
Amendment No. 8 is a small amendment, in that it proposes to leave out the word "natural". This is an extremely important issue for the landowners and farmers who will be most affected by the clause. The amendment seeks to remove the uncertainty arising from use of the word "natural" in clause 13, referring to owners' liability. As the Bill stands, owners' liability is excluded only in relation to the so-called natural features of the landscape. The Government have sought to deal with this by giving a wide definition of natural features, to include any plant, shrub or tree.
I am afraid that that does not go far enough and does not solve the problem of the possible unintended consequences of this restriction on owners' liability. I am aware that the Government appreciate the problem of the liability of owners of access land and that they have made efforts to tackle the legitimate concerns of occupiers' liability.
The Minister will be aware that there have been some problems; his right hon. Friend the Minister for the Environment wrongly quoted a letter from the Country Landowners Association and the British Mountaineering Council about the issue. The basic concerns of landowners, that the Bill should remove liability from all features of the landscape, cannot be coped with by the Bill unless the Government accept our amendment or something similar.
As the Bill stands, a walker could climb over a fragile stone wall to access land. He could damage the wall--paying no compensation--injure himself and then sue the owner for personal damages. That is patently an absurdity and an unfairness. Even the fear of that will have practical consequences. Insurance companies will see this eventuality as a possibility; that is what insurance companies are for. They try to anticipate the unexpected, quantify it and put a price on it. Owners will have to pay increased premiums, as well as paying for repairs to walls. Every wall will have to be subject to a risk assessment.
The situation is inequitable and goes against the grain of English law on liability. It may well weaken the Government's case on the compliance of the Bill with the
Human Rights Act 1998. It is not just walls; there are other farming necessities, such as fences or ditches. As it stands, the Bill will give great pause to any farmer who wishes to use barbed wire fences on the sort of open land that will become access land. I cannot believe that that is the Government's intention.If a ditch has to go because a farmer decides that he is not prepared to pay the extra insurance premium, presumably, after the ditch--which was there for drainage purposes--goes, a swamp will be created. I wonder whether the swamp that replaces the ditch if drainage is made worse will be regarded as a natural feature.
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