Select Committee on Environment, Food and Rural Affairs Written Evidence


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


 
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