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'.After section 26 of the 1980 Act there is inserted--
"Application for a public path creation order
26A.--(1) Any person may apply to a council for the area in which the land is situated for the making of a public path creation order to create a footpath or bridleway over the land.
(2) An application under this section shall be in such form as may be prescribed and shall be accompanied by a map, on such scale as may be prescribed, showing the land over which the public right of way would be created, and by such other information as may be prescribed.
(3) An application may be made by the owner, lessee or occupier of any land used for agriculture, forestry or the breeding or keeping of horses for a creation order concurrently with an application under section 118ZA or 119ZA for a public path diversion order or extinguishment order, and such an application is referred to in this section as a 'concurrent application'.
(4) Regulations may provide--
(a) that a prescribed fee is payable on the making of a concurrent application under this section, and
(b) that further prescribed charges are payable by the applicant if the application is granted.
(5) An application under this section is not to be taken to be received by the council until the requirements of regulations under section 121A below have been satisfied in relation to it.
(6) A council which receives an application under this section shall, after consulting such persons as may be prescribed, determine the application as soon as reasonably practicable.
(7) Before determining to make a public path creation order on a concurrent application under this section, the council may require the applicant to enter into an agreement with them to
(8) Where--
(a) an application under this section has been made to a council, and
(b) the council have not determined the application within twelve months of receiving it,
the Secretary of State may, at the request of the applicant and after consulting the council, direct the council to determine the application before the end of such period as may be specified in the direction.
(9) As soon as practicable after determining an application under this section, the council shall--
(a) give to the applicant notice in writing of their decision and the reasons for it, and
(b) give a copy of the notice to such other persons as may be prescribed.
(10) This section has effect subject to the provisions of sections 121A and 121C below.
(11) In this section--
'prescribed' means prescribed by regulations;
'regulations' means regulations made by the Secretary of State.".'.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: Amendment No. 99, in page 50, line 31, after "agriculture", insert ", land management".
Amendment No. 86, in page 50, line 31, leave out "and forestry" and insert--
', forestry and the breeding and keeping of horses'.
Amendment No. 100, in page 50, line 45, at end insert--
'(3) In this section "land management" means--
(a) any activity associated with agriculture or forestry;
(b) any activity to improve or maintain habitat for wildlife and biodiversity;
(c) any activity to maintain, improve or use sporting opportunities on the land;
(d) pest control; or
(e) any other activity undertaken by or on behalf of the owner in furtherance of earning an income from the land.'.
Amendment No. 90, in page 51, line 21, leave out from "section" to end of line 24.
Amendment No. 88, in page 51, line 21, at end insert--
'( ) that where any prescribed fee exceeds the costs actually incurred by the council, the fee payable shall not exceed those costs, and
( ) that prescribed fees may be reduced or waived by the council in recognition of any benefit to the public if the application is granted, and'.
Amendment No. 73, in page 51, line 41, leave out "four" and insert "twelve".
Amendment No. 91, in page 54, line 35, leave out from "section" to end of line 38.
Amendment No. 89, in page 54, line 35, at end insert--
'( ) that where any prescribed fee exceeds the costs actually incurred by the council, the fee payable shall not exceed those costs, and
( ) that prescribed fees may be reduced or waived by the council in recognition of any benefit to the public if the application is granted, and'.
Amendment No. 74, in page 54, line 48, leave out "four" and insert "twelve".
Amendment No. 87, in page 64, line 12, after "forestry", insert--
', the breeding and keeping of horses'.
Government amendments Nos. 271 and 214.
Mr. Bennett: This is a matter of natural justice. The Government are providing a right for the landowner to propose a procedure to close or divert rights of way. We are simply asking that the general public should be able to press councils to create new footpaths. It is a matter of balance, and I hope that the Minister will accept the amendment.
Mr. Paice: I shall speak to the amendments that my hon. Friends and I have tabled. Amendments Nos. 99, 86 and 100 go hand in hand. Amendment No. 99 would introduce the concept of land management, so that councils would have to have due regard not only to agriculture and forestry but to land management. Amendment No. 100 would add the definition of land management that we discussed last night in a different context. Amendment No. 86 would add the need to have due regard to the interests of the breeding and keeping of horses.
The reasons for the amendments are self-explanatory. In principle, we appreciate the fact that councils will have to have regard to agriculture and forestry, but in today's world it is important to think about wider aspects of land management, including other activities that landowners, occupiers or tenant farmers may wish to carry out on their land that may not necessarily be classified under the headings of agriculture and forestry.
On the issue of horses, I again draw the House's attention--as I did last night in a different context--to the document "An action plan for farming", which the Government published on 30 March. It refers to the fact that a
- significant rural-based industry centres upon horses . . . The Government has assigned the Ministry of Agriculture, Fisheries and Food responsibility for working with the horse industry to help develop its potential for rural-based employment.
In addition to that policy, there seems to be a contradiction in schedule 6. Line 31 on page 50 refers
- to the needs of agriculture and forestry,
- agriculture, forestry or the breeding or keeping of horses.
This groups of amendments includes our amendments to curtail charges made by councils. Much discussion was held in Committee about how much people will be charged under the schedule for the making of applications and what is described in the Bill as "further prescribed charges". We are concerned that the term "further prescribed charges" is too open and wide. It would allow a council to make a charge that was beyond the special nature of the particular application, and included an element of margin or profit, call it what you will.
The purpose of our amendments is to curtail those charges to no more than those incurred by the council, and to give councils the power to waive charges if there is a public benefit in the extinguishment order that the council is considering. We think that it is right and proper for the council to have that level of discretion. The other two amendments make the same points for diversion orders as opposed to extinguishment orders.
Our amendments are small but important. I commend them to the Minister, and I trust that he will respond constructively.
Mr. Mullin: I shall do my best. Amendment No. 72, tabled by my hon. Friend the Member for Denton and Reddish (Mr. Bennett), would give a right for anyone to apply to a council for an order under section 26 of the Highways Act 1980 to create a footpath or bridleway.
As I said in Committee, I agree with my hon. Friend that local authorities should be more willing to consider making use of their powers to create footpaths and bridleways by agreement with landowners or by order. We are keen to promote the joining up of missing links in the rights of way network, and we want to encourage a more proactive approach by local highway authorities to meeting modern day recreational needs. However, we are not convinced that giving a person a right to apply for creation orders over someone else's land is an appropriate way of achieving that.
In the consultation paper issued last year, we explained that it would not be appropriate for people to have an express statutory right to apply for creation orders. Highways exist for the wider public benefit, and we believe that the responsible public authorities should determine whether, and if so where and when, to initiate specific proposals for creating new highways. It is for them to decide whether a new footpath or bridleway is needed.
The public will be able to influence local authorities' strategies towards the creation of new rights of way during consultations on the improvement plans that authorities are required to prepare under clauses 53 and 54. Landowners who are willing for a path to be created over their land have no need to apply for an order. For example, the Highways Act 1980 already enables them to enter into an agreement with their local authority for the creation of public paths. Therefore, I am afraid that, once again, I have to ask my hon. Friend not to press his amendment.
Amendments Nos. 88 to 91 would modify new sections 118ZA and 119ZA of the Highways Act 1980, which are contained in schedule 6, and would require that, if any prescribed fees exceeded the costs actually incurred by the council, the fee payable should not exceed those costs, and would allow prescribed fees to be reduced or waived by the council in recognition of any benefit to the public if the application were granted.
Those amendments would also remove new section 118ZA(3)(b), which provides the power to make regulations relating to further charges on top of an application fee and in relation to public path extinguishment orders. The regulations will provide that fees and charges do not exceed the costs that they are intended to cover.
It is common practice for authorities to charge administration fees for the work done in considering applications for consent to do something--for instance,
planning applications. They have some limited discretion as to whether to waive fees, but there appears no good reason to make an exception for applicants for public path orders, even if public benefit may result. In many instances, applicants will be seeking orders because it is in their interests to do so.Amendments Nos. 86 and 87, tabled by the hon. Member for South-East Cambridgeshire (Mr. Paice), would require councils to have regard to the keeping and breeding of horses. We believe that that would be consistent with new sections 118ZA and 119ZA. These would introduce a right for owners and occupiers of land used for, among other things, the keeping and breeding of horses to apply for footpaths and bridleways to be diverted or closed. We are therefore willing to consider them.
However, I am afraid that I cannot accept amendments Nos. 99 and 100. Their collective effect would be to extend the duty under section 29 well beyond its current scope. The definition of land management in amendment No. 100 is extremely wide. For example, it includes any activity undertaken in furtherance of earning an income from the land. That could mean almost anything. Arguably, it could cover development--for example, if a farmer were diversifying--and only a short step would be needed to take account of the potential for building housing estates or out-of-town shopping centres.
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