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'(1A) In paragraphs (a) and (b) of subsection (1), the words from "so however" to the end of the paragraph are omitted in each case.'.
Madam Speaker: With this it will be convenient to discuss the following amendments: No. 305, in page 47, line 18, leave out from '(b)' to '"together' and insert--
'for the words from "so however" to the end of the paragraph there is substituted'.
No. 302, in schedule 7, page 75, line 12, leave out from "is" to first "to" in line 13.
No. 303, in page 75, leave out line 14.
No. 45, in page 75, line 14, leave out "prima facie".
No. 135, in page 75, line 32, at end insert--
'(5A) A person shall be deemed to have and to always have had lawful authority if that person is driving a mechanically propelled vehicle on to or upon a way or track across common land in order to gain access to or egress from a dwellinghouse where the access is across that common land.'.
No. 136, in page 75, line 32, at end insert--
'(5A) Where a way across a common has been used as the vehicular access to a dwellinghouse as of right and without the access having been called into question by proceedings for 20 years prior to 3rd November 1999 then any person shall have lawful authority to drive a mechanically propelled vehicle to and from the dwellinghouse.'.
Mr. Hunter: I want to speak to amendments Nos. 304, 305, 302 and 303, which were tabled by the hon. Member for North-East Derbyshire (Mr. Barnes). I added my name to two of them, but it was an act of incompetence on my part that I did not sign all four; I overlooked two. The hon. Member for North-East Derbyshire is understandably absent, and I send my best wishes to Mrs. Barnes for a full and speedy recovery.
Amendments Nos. 304 and 305 relate to schedule 5(4). The schedule amends the Wildlife and Countryside Act 1981. Amendments Nos. 302 and 303 relate to
schedule 7(5) and would amend the Road Traffic Act 1988, albeit in a slightly different form from the substitution that the Bill proposes. The amendments arise from the long-standing, increasing and much-publicised problem of the abuse of rights of way by motorised vehicles. I have raised the subject twice in Adjournment debates, as well as on Second Reading.The heart of the problem is the reclassification of RUPPs under the Wildlife and Countryside Act 1981. It is generally agreed that that Act has, sadly, failed to provide the necessary protection for our green lanes. It is also a legal minefield. Vast tracts of our green lanes are extensively damaged by abuse by motorised vehicles. Agricultural vehicles cause some damage, but the root cause of much of the abuse by motorised vehicles is the limitation of the reclassification process under the 1981 Act.
I share the opinion of the hon. Member for North-East Derbyshire that the Bill does not fully and adequately tackle the problem, hence the amendments. If the hon. Gentleman were here, he might have chosen to illustrate his general argument by referring to a specific episode, which happened in his constituency. Eight defendants appeared at Chesterfield magistrates court in November 1999, charged with driving on a bridleway--Grimsell lane, Holmesfield in Derbyshire. The case lasted for three days, and the defendants were acquitted.
Sergeant Harwood, who was involved in bringing the case to court, shared his thoughts on the subject with the hon. Member for North-East Derbyshire. He also wrote to me at some length; I greatly appreciated hearing from him. He argued that the Grimsell lane case clearly illustrates the problems of prosecuting illegal vehicular use of bridleways. The words "but no other" in the definition of bridleway in section 66(1) of the 1981 Act and section 192(1) of the Road Traffic Act 1988 constituted the sticking point.
The three words "but no other" put the onus on the prosecution to establish beyond reasonable doubt that no vehicular rights exist. That applies to every route on a case-by-case basis. Consequently, the prosecution of a relatively minor offence requires a disproportionate amount of time and effort, and detailed research into every route.
It is not surprising that the stipendiary magistrate at Chesterfield magistrates court lamented in his judgment on the Grimsell lane case:
- If the Definitive Map were indeed definitive, that would be an end to the matter.
The Grimsell lane case, and others, have shown that it takes considerably less evidence to introduce doubt into a criminal trial, and so win an acquittal, than it does to prove that vehicular rights exist. I am told that Derbyshire county council was aware of no evidence to prove vehicular rights on Grimsell lane even after extensive research in preparing for the case, which nevertheless went against them. The Chesterfield judgment is likely to prevent further prosecutions under existing legislation. It is that scenario, and others like it, that the hon. Member for North-East Derbyshire wants to address under the amendments.
As hon. Members know, schedule 5 will make procedural changes to the provisions of the Wildlife and Countryside Act 1981 on the circumstances in which the definitive map and statement can be modified when an illegal event has occurred. Reduced to simplicity, amendment No. 304 would add a new section that would further amend section 56 of the 1981 Act. Whereas the definition of bridleway under the Road Traffic Act 1988 assumes that there are "no other rights"--a tag that appears in section 192 without qualification--the same tag is qualified in the 1981 Act by the words
- without prejudice to other rights.
Amendment No. 304 would provide an alternative and firmer foundation. It would tighten the inherited definition and remove the element of ambiguity. Amendment No. 304 is wholly consistent with the intentions stated in the Bill. Much the same argument can be applied to amendment No. 305, the purpose and effect of which would be to define further when a right of way is not open to mechanically propelled vehicles. It follows naturally from the previous amendment and is also consistent with the Bill.
Amendments Nos. 302 and 303 relate to schedule 7, which deals with the driving of mechanically propelled vehicles elsewhere than on roads. Their purpose and effect would be to promote the status of a definitive map and statement. That would be done by removing the let out
- without prejudice to section 51(1) of the Wildlife and Countryside Act 1981
- unless prima facie evidence is adduced to the contrary,
The intention is simple: to make the definitive map definitive, and I have already referred to the uncertain platform for prosecution provided by section 34 of the 1988 Act. In other words, these amendments would make the definitive map and statement the deciding factors. It should be an offence to drive a mechanically propelled vehicle on a way shown on the definitive map as a bridleway, unless public rights for that purpose were shown to exist at the time of such use.
In short, all four amendments would provide essential protection for rights of way, facilitate enforcement against unwanted and illegal use by motorised vehicles and promote the intentions stated in the Bill. I commend the amendments to the Minister, and I hope that he will respond positively.
On amendments Nos. 135 and 136, which were tabled by my right hon. Friend the Member for North-West Hampshire (Sir G. Young), I have no intention whatever of stealing his thunder. If he catches your eye, Mr. Deputy Speaker, he will no doubt fully present the arguments for them. All that I wish to do in advance of his contribution is to declare my support for them. They deal with a problem to which I referred on Second Reading, when I drew the Minister's attention to the practice of common owners charging residents for access to their homes if their driveways pass over common ground. I encountered
that practice in the village of Newnham in my constituency, where it causes some concern. The owners of common land demanded a charge of several thousand pounds, which the vendor of a house felt obliged to pay so that the purchaser could be assured of rights of access and egress.On Second Reading in March, I was aware of only three or four similar instances in other parts of the country, but more have come to light since then. I warmly endorse the arguments that I anticipate my right hon. Friend will make in due course.
4.30 pm
Sir George Young (North-West Hampshire): I thank my hon. Friend the Member for Basingstoke (Mr. Hunter) for his remarks. Perhaps he was the lightning before the thunder.
I should like to speak to amendments Nos. 135 and 136 in my name and in the names of some of my hon Friends and my parliamentary neighbour the hon. Member for Newbury (Mr. Rendel). The background to these two amendments is an Adjournment debate on 3 November last year. In a nutshell, a group of my constituents who have been living peacefully on or around Newtown common--one for 60 years and several others for more than 40 years--woke up to find that a company called Bakewell Management had acquired ownership of Newtown common.
One resident received a letter dated 6 October 1999 from chartered surveyors acting for Bakewell. It said:
- As it appears that you and your visitors are driving over our client's land to reach your house, we are offering you an amnesty whereby you can come to a settlement with our clients at a favourable rate.
In many cases, 6 per cent. could be £30,000. In a few, it would be a lot more. Many of my constituents are retired and cannot easily find such sums. They cannot sell their houses because they are, in effect, blighted until this problem is solved.
These constituents have had uninterrupted access from the main road to their houses for time immemorial. They bought their houses through solicitors to whom they paid professional fees, and the solicitors had done the searches with the local authority. None had revealed any problem, and nor was there a problem until two things happened. First, a court decision in 1993 and, secondly, the subsequent acquisition of the common by Bakewell, with a view to exploiting that decision.
I shall distil a complex problem into a sentence or two. A Court of Appeal decision in 1993--Hanning v. Top Deck Travel Group--gave a fresh interpretation of the law on vehicular access over common land. The court decided to deny access over a common to business premises by double-decker busses. Private cars and private houses were not considered, but are assumed to be similarly precluded from access by those who have studied the case.
The court decided that, because it had been illegal since 1925 to drive over urban and certain other common land, householders who had enjoyed free access could not
acquire a prescriptive right through an illegal activity. Driving over the remaining common land was banned in 1930. The only way that a right to drive from a public road to one's property over common land can be secured is by getting an easement from the owner of the common. Bakewell bought Newtown common, and is now seeking to exploit the court decision by charging my constituents for something no one dreamed of charging them for before.The Law of Property Act 1925 was never meant to stop people driving over a common to their home. It was intended to restrict members of the public from driving on commons while others were on the common for "air and exercise". Indeed, no one was prevented from driving to their houses across a common from 1925 until 1993, but this is the interpretation that we are now stuck with.
Initially, I pursued this matter with the president of the Law Society to see whether there was a way through, short of changing the law. In a letter dated 24 November 1999, he said:
- If the solicitors carried out all the normal searches and no problems with access were revealed, then the solicitors would not have been negligent.
If there is not clear negligence and they are simply the victims of one of the more arcane aspects of our legal history, ie laws concerning common land, they may be left without redress. If that is the situation, then they have to look to Parliament to amend the appropriate law.
Since that debate, it has become clear that Newtown common does not represent an isolated incident. I have had many letters from colleagues and members of the public. My hon. Friends the Members for Guildford (Mr. St. Aubyn) and for Surrey Heath (Mr. Hawkins) have been active in Surrey, and the Runton and district residents association, from the constituency of my hon. Friend the Member for North Norfolk (Mr. Prior), has written. My hon. Friend supports the amendments. Constituents in Pirbright, represented by my hon. Friend the Member for Woking (Mr. Malins), have also written. My hon. Friend the Member for Tewkesbury (Mr. Robertson) has a constituency issue, as has my hon. Friend the Member for South-West Hertfordshire (Mr. Page) in Chorleywood common. My right hon. Friends the Members for Bromley and Chislehurst (Mr. Forth) and for North-East Hampshire (Mr. Arbuthnot) and my hon. Friends the Members for Stratford-on-Avon (Mr. Maples) and for Beaconsfield (Mr. Grieve) are all concerned.
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