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'(12) Section 27 above (making up of new footpaths and bridleways) applies to a highway created by a special diversion order with the substitution--
(a) for references to a footpath or bridleway of references to a footpath, a bridleway, a restricted byway or a highway over which the public have a right of way for vehicular and all other kinds of traffic,
(b) for references to a public path creation order of references to a special diversion order, and
(c) for references to section 26(2) above of references to section 120(3) below.
(13) Neither section 27 nor 36 above is to be regarded as obliging a highway authority to provide--
(a) on any highway created by a special diversion order, a metalled carriage-way, or
(b) on a restricted byway so created, a carriage-way which is by any other means provided with a surface suitable for the passage of mechanically propelled vehicles."'.
No. 256, in page 57, line 24, leave out from "council" to end of line 28 and insert--
'for the making by virtue of section 119B(1)(b) above of a special diversion order in relation to any highway for which the council are the highway authority and which--
(a) crosses land occupied for the purposes of the school, and
(b) is a relevant highway as defined by section 119B(1A) above.'.
No. 257, in page 57, line 30, leave out "footpath or bridleway" and insert "highway".
No. 258, in page 57, line 47, leave out--
'where the council are the highway authority for the path or way'
'to the extent that the council are the highway authority for the highway'.
No. 259, in page 57, line 49, leave out "path or way" and insert "highway".
No. 260, in page 57, line 51, leave out "where" and insert "to the extent that".
No. 261, in page 58, line 3, after "substitution" insert "(a)".
No. 262, in page 58, line 4, after second "order" insert "and
(b) for references to a footpath or bridleway of references to a highway'.--[Mr. Meacher.]
Mr. Tom Brake (Carshalton and Wallington): I beg to move amendment No. 43, in page 58, line 16, leave out "significant damage" and insert "damage or disturbance".
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: Government amendment No. 263.
Amendment No. 44, in page 58, line 22, after "damage", insert "or disturbance".
Amendment No. 80, in page 59, line 39, after "that", insert--
'the path or way will not be substantially less convenient to the public in consequence of the diversion and that'.
Mr. Brake: The amendments have two main purposes--to ensure that disturbance to birds caused by people walking down highways can be a reason for making a site of special scientific interest diversion order, and to ensure consistency between schedules.
I shall take the second purpose first. Paragraph 28F of schedule 8 refers to "damage", whereas paragraph 119D of schedule 6 refers to "significant damage". The amendments would ensure that the reference in both cases would be to "damage".
I turn now to the first purpose of the amendments. A briefing from the Royal Society for the Protection of Birds gives three specific examples of the impact that disturbance can have on birds. It reports that a footpath runs along the top of a flood defence bank by the Ouse washes in Cambridgeshire, and that people on the bank are clearly visible to wintering, passage and breeding waders and wildfowl. A local tourism group proposes to use the bank as part of the Black Fen path. The RSPB believe that walkers on the bank who appear above the skyline will disturb birds on what is a site of special scientific interest.
A similar problem is reported at a place called Deadman's Grave, situated near the Norfolk/Suffolk border. The RSPB states that a footpath running through the area is likely to cause disturbance to breeding birds.
It is clear from case studies provided by the RSPB that birds can be disturbed at the sites mentioned in the briefing. There is therefore a need to ensure that the Bill takes account of both damage and disturbance. The RSPB states that, unless the amendment is accepted and the word "disturbance" is included in the Bill, it will not be possible to provide the special protection areas for birds required under the EU birds directive.
If the Minister does not accept the amendments, I hope that he will explain why he is happy with the discrepancy between schedules 6 and 8 that I have already described. If the word "disturbance" is not included in the Bill, will he say whether the Government will be able to comply with the EU birds directive?
Mr. Kidney: I wish to raise the issue of the convenience of walkers in connection with amendment No. 80. Will any alternative route that is the result of a diversion be as convenient for walkers as it can be, bearing in mind the need for the diversion in the first place?
Mr. Mullin: Amendments Nos. 43 and 44 would modify the new section 119D(1) in schedule 6 so as to enable highway authorities to make SSSI diversion orders in cases where "disturbance", as well as "damage", is resulting or is likely to result from use of a right of way.
While I am sympathetic to the concerns about species being disturbed, we are not willing to accept the amendments.The rights of way network and the SSSI regime have co-existed for a considerable period of time and--the two examples mentioned by the hon. Member for Carshalton and Wallington (Mr. Brake) notwithstanding--we do not believe that the use of rights of way causes significant problems in terms of disturbance to SSSIs. We see no grounds for including that as a reason for diverting a right of way to protect an SSSI, nor do we believe that it is necessary to meet obligations under the EC birds and habitats directive. In our view, the current test for a diversion, which is that use of the right of way is causing or is likely to cause significant damage to the site, provides all the protection needed.
It might be possible to argue that there are cases in which disturbance to the protected features of an SSSI is of such a type, or such a degree, that it would amount to "significant damage". The examples cited by the hon. Gentleman might come into that category. In such cases, the test would be met and a diversion order could be made. However, I have to stress that we think that such cases are likely to be very rare indeed.
Where the disturbance is temporary--for example, during the breeding season--it might be more appropriate to make a traffic regulation order rather than a diversion order. Again, we think that the powers should be used only rarely for this purpose.
Amendment No. 80 would prevent a right of way from being diverted to protect an SSSI if the diverted way were substantially less convenient to the public. The amendment closely resembles one tabled in Committee by my hon. Friend the Member for Stafford (Mr. Kidney), along with others that also sought to introduce a similar test of convenience for special diversion and special extinguishment orders for crime prevention and school security. The amendment goes in the opposite direction from those tabled by the hon. Members for Somerton and Frome (Mr. Heath) and for Carshalton and Wallington. Taken together, the amendments are a clear illustration of the conflicting objectives that we have to reconcile.
As we explained in Committee, we believe that in order to ensure against a possible breach of our obligations under the EC birds and habitats directive, the making of SSSI diversion orders cannot be made conditional on the diverted way being as convenient as the existing way.
Mr. Green: In Committee, my hon. Friend the Member for Cotswold (Mr. Clifton-Brown) asked how many traffic regulation orders had been made in the past three years. I believe that the Minister promised to let my hon. Friend and the Committee know. Is that information yet available?
Mr. Mullin: It is not available at the moment, but should it become available in the course of my remarks I shall ensure that it is smuggled to the hon. Gentleman. It may be that in some cases, in order to prevent significant damage to an SSSI, a right of way may have to be diverted in a manner that is less convenient than the existing right of way. As I have said, we believe the powers should be used only rarely, but if it is necessary to use them, we must be sure that they are effective in meeting EC obligations when those are involved. I hope that my hon.
Friend the Member for Denton and Reddish (Mr. Bennett) and the hon. Member for Carshalton and Wallington will feel able to withdraw their amendments.Government amendment No. 213 will remove the need for an SSSI diversion to be as substantially convenient to the public. It is necessary to ensure consistency with subsection (9) of new section 119D which, unlike section 119 of the Highways Act 1980, does not require that, before a diversion order can be confirmed, the confirming authority must be satisfied that the diversions will not be substantially less convenient to the public--that is for the reasons I have explained in relation to amendment No. 80. Government amendment No. 263 is a minor technical amendment which ensures that, in line with existing diversion powers, the SSSI provisions relate to the line or part of the line of a right of way.
News has reached me in relation to the point raised by the hon. Member for Ashford (Mr. Green), but I would not wish to raise the hopes of the hon. Member for Cotswold, because it says only that a letter is on its way. I am sorry to have to keep him in suspense.
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