Draft Vehicular Access Across Common and other Land (England) Regulations

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Mr. Rendel: The hon. Gentleman brings to mind a point that I should perhaps have made in reply to the intervention of the hon. Member for Mid-Bedfordshire. There is, surely, a difference—the Minister may want to comment on it later—between ownership by a local authority and ownership by a private landlord. A private landlord can do what he likes in setting charges, at least until the regulations are in place, whereas some local authorities have felt that under best value they were legally not entitled to ask for a smaller sum in compensation than the maximum that they could possibly get.

Sir Paul Beresford: I thank the hon. Gentleman for that intervention. I have been involved in such circumstances in my constituency. A parish council was pressured by an auditor on those grounds. Fortunately, we calmed the local authority and suggested that the auditor might think again, and I hope that the circumstances have been alleviated.

I have a small group of not-at-all wealthy people who have lived in the family home for some considerable years. The value of their property falls into the 2 per cent. band in the regulations. To put it mildly, they will be crippled. I hope, perhaps vainly, that the Minister will seriously consider such circumstances, withdraw the statutory instrument and propose a ceiling because of the specific difficulties presented by property values in the south-east.

5.13 pm

Alun Michael: I am grateful to the hon. Members who have contributed to the discussion, not least because, by referring to different circumstances from their constituency experience, they have highlighted why it has taken a little time to introduce the regulations: we were trying to get the balance right. I am pleased and reassured by the tone of the remarks of all three hon. Members. We have been criticised for setting the level of compensation too low. Indeed, that criticism in one letter copied to me was set out in virulent terms that I thought inappropriate for anyone who has considered the circumstances involved, as the three hon. Members clearly have.

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It is difficult to frame fairly legislation in which the variations may be considerable. The regulations must be fair with regard to individual sets of circumstances, and they must be fair both to the person who owns the land over which access is to be granted and the person who is gaining the certainty of access.

I wish to underline the phrase ''certainty of access'' because we are talking about people who thought that they had access until comparatively recently. However, there are circumstances in which matters should have been regularised under previous arrangements, and others in which the property or land in question might be very valuable—as the hon. Member for Mole Valley (Sir P. Beresford) suggested—but there are also circumstances in other parts of the country where the land in question might be of extremely low value and where, therefore, the compensation will barely cover the legal costs of the arrangements.

Therefore, there is a tug in both directions, and the hon. Member for Mid-Bedfordshire was almost kind when he said that resolving the matter called for the ''judgment of Solomon''—although he went on to imply that we should have been able to make that judgment quite easily. At the end of the day, this was a matter of judgment, and we have got it about right by going at the lower end of the range of what is reasonable in terms of not disadvantaging anybody with regard to what they can reasonably expect within the protections of the Human Rights Act 1998.

I must correct the hon. Member for Mid-Bedfordshire about one thing. He suggested that there was a possible alternative calculation of one third of the difference of value. We dropped that alternative, because a variety of organisations and people who responded about the matter commented that it was complex and that it would almost never be used. We made that clear in paragraph 32 of the analysis of responses, which was placed in the Library when we made the change from the original draft and the draft that was laid before Parliament. That paragraph states:

    ''A number of respondents have suggested that the valuation under regulation 13(2) is overly complex, unnecessary or unhelpful and would be expensive to obtain and is likely to apply in only a very few cases. We agree, and have removed this requirement. There is a risk this would result in more compensation in cases where the existence of a right of access does not add much to the value of the premises, but we consider that this is such a very slight risk that removal is justified.''

Reference has been made to the CLA's comments. That organisation is aware that its membership includes people who are on both sides of the argument about the level of compensation that is reasonable. We took time over this because of the variations of circumstances, and because several hon. Members wished me to meet with some of their constituents who would be affected. Some of those constituents argued passionately for nil compensation on the grounds of value, but others argued that they would be unfairly disadvantaged if we did not set a much higher level of

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compensation. Hon. Members' comments lead me to believe that the Committee is on my side with regard to the balanced judgment that we have made.

Sir Paul Beresford: As I am not a Committee member, I am on the outside with regard to the Minister's last remark. When he made his balanced judgment, was he aware of the circumstances of some people in the south-east, where the upper limit would be in excess of £20,000?

Alun Michael: Yes, but at the end of the day, one has to balance the impact of that against the position in other parts of the country, such as upper and mid-Wales, where the value involved would be almost negligible and hardly likely to cover the costs of a simple transaction. We have had to strike a balance between such different circumstances.

Sir Paul Beresford: I am sorry to be persistent, but the problem with that is that there is no redistribution.

Alun Michael: It is interesting to note that the Conservative party is in favour of redistribution. I shall analyse that view when I hear the hon. Gentleman's contributions in other contexts.

It is simple to judge the position. Various values are involved in the transactions that govern the regulations. In some parts of the country, such values could be considerable and a small percentage of a large value could be more than a small percentage of a small value. Given that we are dealing with property values and want to deal with such circumstances in a balanced and fair way, there will be an inconsistency between the way in which the actual costs fall on an individual in one place compared with another. There will also be proportionate variations in the values of properties.

Mr. Sayeed: My hon. Friend the Member for Mole Valley asked whether there should be an upper cash limit. It could be set at £10,000; it could be set at £5,000. I have no idea what it should be set at, but the concept of an upper limit means that 2 per cent. of a property that is worth £1 million, which could be considered excessive for rights that have been historically enjoyed, would be tempered.

Alun Michael: I understand the hon. Gentleman's argument, but the view that we reached was that, in such circumstances, we would be acting to the disadvantage of the landowner. When considering whether that blanket decision was appropriate, we believed that the level should be in line with the compensation because it would be commensurate with the value and the regulations would be fair.

It was asked whether the regulations should be open-ended, and how they could be evoked. It would be unfair to leave the landlord in an uncertain position as it would be unfair to leave the house owner in a similar position. The hon. Member for Newbury (Mr. Rendel) drew attention to regulation 6, which referred to the application having to be served with 12 months of the relevant regulation coming into effect, and the loss of rights in those circumstances. The individual

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would lose the right only if he were challenged or if the use had ceased. If there were no problem, the regulation could be evoked at a later stage.

To explain that, I must refer to regulation 6(2) and schedule 2(b)(ii), which deals with the circumstance

    ''where the application is served after 12 months of the date on which these Regulations come into force, either that the relevant use of the way has not ceased or that such use ceased no more than 12 months before the date on which the application is served''.

Mr. Rendel: I am not clear that that deals with the problem. Let us consider, for example, someone who is elderly and infirm, and who is not capable of dealing with such matters, or people who are so cash poor that they do not have the money to bring the regulations into effect within 12 months until they sell up. Moreover, if they are not using the access, they may not realise that the landlord has said that they cannot use it. They may not be aware that there could be a difficulty, so when they sell, perhaps in 13 months' time, the new owner will not have the rights of access written into the deeds, and he or she will be too late to apply these regulations.

Alun Michael: The point that I am making is that there would be a loss only if the right were challenged or had ceased to be used. It is difficult to argue that we should go beyond the legislation, which was intended to clear up an anomaly where the access had been used over a length of time, so creating an entitlement to regularise the position.

We cannot go beyond the 2000 Act, which was intended to regularise situations where a right of access has been developed and would have become an entitlement—a de facto right—were it not for the fact that it involved access over common land and where that legislative anomaly caused the problem. The 2000 Act was intended to deal with that anomaly, and if other anomalies go further than that I am afraid that this is not the place to deal with them. If the hon. Gentleman knows of a particular circumstance, I am happy to consider the anomaly to which he refers and to find out whether the 2000 Act allows it to be addressed, but I rather think that it does not.

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