Memorandum submitted by the Council for
National Parks (Appendix 23)
COMMENTS ON DRAFT NERC BILL
INTEGRATED AGENCY
1. 2 (1) The Agency's general purpose is
stated in terms of conservation, enhancement and management.
2. 2 (a, b and d) include a range of different
roles related to nature conservation (which is promoted), biodiversity
(protected), landscape (conserved and enhanced) and access (promoted).
CNP suggests that these different approaches serve to create a
false hierarchy amongst the functions of the new Integrated Agency
(playing "protection" off against "conservation"
and "enhancement", etc). The change of language also
allows for different interpretations to be made. CNP suggests
that there is a need to "protect" the English landscape
and access to the countryside and that the word "protecting"
should be included in 2 (1), 2 (2b) and 2 (2d).
3. Alternatively, 2 (2) could be structured
differently, by Agency function, for example:
(a) Protecting, conserving and enhancing
biodiversity and the English landscape.
(b) Protecting and promoting access to the
countryside, etc.
(c) Promoting nature conservation.
(d) Securing the provision, etc. (this could
be combined with c above).
(e) Contributing in other ways, etc.
4. The Agency should promote access to the
natural environment as actively as it does conservation of the
natural environment. However, the Bill should ensure that where
irreconcilable conflicts arise, the protection of the natural
heritage for future generations must always take precedence (the
"Sandford Principle" which applies in the National Parks).
COMMISSION FOR
RURAL COMMUNITIES
(CRC)
5. 18 (1a) CNP welcomes the CRC's proposed
focus on rural disadvantage but urges that the new Commission's
general purpose should include promoting rural opportunities as
well as addressing rural needs. This will enable it to take on
the role of rural proofer in a more holistic way.
6. We note the draft Bill allows both the
Integrated Agency and the CRC to experiment, innovate and devolve
their powers to other organisations. However, we are concerned
that the independent "arms length" nature of both organisations
may be undermined through Sections 15, 16, 24 and 25 of the draft
Bill which propose to give the Secretary of State wide-ranging
powers to give guidance and directions. These sections should
be amended such that any such guidance and direction is consistent
with the purposes of the new bodies.
OFF-ROAD
VEHICLES
7. The draft Bill offers the opportunity
for legislative measures to improve the management of the rights
of way network, issues which are particularly urgent for National
Parks. Specifically, there is the prospect of the government using
the Bill to take forward its plans to make it no longer possible
to claim a right of way (defined as a byway) open to motor vehicles
on the basis of historical evidence of use by a horse and cart,
or through longstanding illegal use.
8. The major flaw in the government's plans
is that there will be a period of grace to register further byways
open to motorised traffic under the old rules. Already there are
reports of motorist groups submitting hundreds of claims in some
counties for green lanes to be registered as byways open for vehicular
use, before any new legislation bites. A further flaw is that
the government intends to repeal section 34A of the Countryside
and Rights of Way Act 2000, an earlier piece of loophole-closing
legislation whereby those driving on footpaths or bridleways (ie
on the face of it illegally) could escape prosecution by producing
evidence of hitherto unknown vehicular rights on that route. The
government has decided this section is contrary to human rights
legislation. The repeal of section 34A will put the burden of
proving there are no vehicle rights back onto the prosecution,
something which is almost impossible to do in practice.
9. CNP considers it vital that the government
seizes the opportunity the Bill presents to close the legislative
loopholes currently exploited by recreational motor vehicles to
use unsurfaced rights of way. These are issues which seriously
affect the National Parks, where the majority of the public consider
recreational off-road driving to be incompatible with National
Park purposes.[1]
The popular support for these measures is clearly demonstrated
via a recent public opinion poll where 87% of the public accepted
the need for a ban on the activity in National Parks and AONBs.
The government received over 14,000 responses to its consultation:
three quarters of those who formally responded supported the proposals,
which included the ending of the "horse and cart" loophole.
Additionally, there is cross-party political support for the changes:
in the last year alone there has been an Early Day Motion signed
by 114 MPs, several debates and questions put in both the House
of Commons and the House of Lords, and two Private Members Bills
designed to address the issue.
10. Two ways of addressing these particular
problems in the Bill are to:
Reinstate a "suitability"
test for ways claimed for vehicular rights: a test that even recreational
driving groups agree is common sense. In 1968 there was legislation
that allowed authorities to only register a way as a byway according
the way's suitability in terms of width, condition, surface and
whether any loss of vehicular rights would cause undue hardship.
This would deal with the surge of claims which will escape the
new legislation and would allow the suitability of opening up
these routes to be assessed at the time when the evidence of vehicular
rights is being assessed.
Not to repeal section 34A, but instead
to explore how to address the will of parliament so that the burden
is not placed back on the prosecution to "prove a negative"
when prosecuting those who are apparently driving on footpaths
and bridleways with impunity.
11. There is also an opportunity in the
Bill to address the need for greater powers of control over use
of rights of way by National Park Authorities.
12. In the House of Lords on 10 January
2005, just prior to the government announcement on its strategy
on the use of motor vehicles on byways and the countryside, the
government spokesperson, Lord Whitty recognised "Clearly
there are specific issues relating to National Parks. It is important
that we continue to examine how we can deal with the situation
in National Parks".
13. A letter to CNP from Defra official
Lee Armitage, dated 31 January 2005, clearly indicates that the
government is "sympathetic to the suggestion that National
Park authorities would benefit from the power to make traffic
regulation orders."
14. Traffic Regulation Orders (TROs) are
legal orders which can ban any type of user on a right of way.
They are at present the only instrument which appears available
for control of non-essential motor vehicular traffic in the countryside.
National Park Authorities do not have the power to make and impose
TROs that restrict motor vehicle access. These powers are reserved
to highway authorities (ie county councils, unitary authorities).
Thus, the authorities that are charged with the protection of
these special areas are not empowered to put in place controls
that would help them achieve protection of the Parks. Most National
Park Authorities have commented on their need for greater powers
to initiate TROs. Those most affected by recreational vehicle
driving have generally found it difficult to gain a TRO from the
local traffic authority, which has different priorities and purposes
from those of the National Park Authorities. In particular, highway
authorities tend to be particularly cautious about the costs involved.
In some cases it has taken several years for a National Park Authority
to negotiate the imposition of a TRO.
15. CNP considers that National Park Authorities
should have the power to make Traffic Regulation Orders. Section
22 of the Road Traffic Regulation Act 1984 enables a local traffic
authority permanently to regulate traffic (including banning off-road
vehicles) for the purpose of conserving or enhancing the natural
beauty of the area, or of affording better opportunities for the
public to enjoy the amenities of the area. Other sections of the
Act allow for experimental and temporary orders to be made (for
instance over the winter months when off-road activity is at its
highest). All these are useful tools for National Park Authorities.
The Bill could introduce the following small amendment:
The following shall be inserted after
Section 121A of the Road Traffic Regulation Act 1984 (definition
of local traffic authority) as follows.
After subsection 5 insert:
Under Sections 1, 9, 14 and 22 of the
Road Traffic Regulation Act 1984 the relevant National Park Authority
shall be the local traffic authority for the purposes of controlling
traffic by way of traffic regulation order on unclassified county
roads and public rights of way within the relevant National Park.
16. As an alternative, the government could
consider amending the Road Traffic Regulation Act 1984 Section
22(3) which allows the Countryside Agency and Countryside Council
for Wales to request the Secretary of State for Transport or National
Assembly for Wales to make a Traffic Regulation Order. This could
be amended to give National Park Authorities the ability to also
make that request.
NATIONAL PARKS
AND THE
BROADS
17. In view of the Committee's interest
in National Parks, we offer some brief comments on what are expected
to become provisions in the Bill on National Parks and the Broads.
We would be pleased to provide more detail on these if that would
be helpful at this stage.
18. Overall, CNP supports the proposed measures
on the Broads and particularly the proposal to bring the first
two purposes of the Broads Authority in line with National Parks.
19. CNP also generally supports the proposed
measures on National Park Authorities, in particular the proposal
to transfer the Secretary of State's power to make an order preventing
agricultural operations on moor and heath in National Parks to
National Park Authorities.
20. CNP will be seeking clarification on
the proposal to take powers to achieve the right balance of National
Park Authority membership as we would be extremely concerned if
the Secretary of State or Welsh Assembly Government was enabled
to vary the membership balance of National Park Authorities at
will.
Council for National Parks
February 2005
1 Section 5 of the 1949 National Parks and Access to
the Countryside Act, as amended by Section 61 of the 1995 Environment
Act. Back
|