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Mr. Andrew Mackay (Bracknell) (Con): I entirely endorse the remarks of the hon. Member for Islington, South and Finsbury (Emily Thornberry). We all have many constituents who are keen cyclists and it is important that an otherwise good Bill does not affect their access to the countryside. She and my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) were right to suggest to the Minister that the appropriate time to put the problem right would be by amendment in the other place. I hope that her eloquence will be heeded in the other place and that the matter will be satisfactorily resolved.
I have another problem in that several of my constituents have entirely inadvertently been caught up in the crossfire of the Bill and will be hugely damaged by it, if it is not amended. I refer, of course, to people who live on RUPPs—roads used as public paths. Many such people, especially those in the Finchampstead part of my constituency, have lived on RUPPs for many years and assumed that they had vehicular access. They are now all being told that they cannot sell their homes.
I know of an extreme example of an elderly couple in their 80s. All medical advice states that they should go into a residential home. Their only substantial asset is their house, which is potentially worth £500,000. Their family would like them to sell it so that they can move into a residential home, but the house is totally unsaleable, as is every single house in my constituency that is on a RUPP. Agents and solicitors tell the owners of such houses that it is not worth while even going to market.
I took up the matter with the Secretary of State, first on behalf of my constituent, Colin Macey OBE, who is chairman of the Heath Ride residents' association,
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which covers the area in which many of the RUPPs are situated. I wrote to the Secretary of State on 4 August and she kindly replied in some detail exactly a month later. With your permission, Mr. Deputy Speaker, I shall quote from her letter because it is relevant.
The Secretary of State set out the background to the case succinctly. She wrote:
"Mr Macey has motor vehicle access to his home along a . . . RUPP . . . The classification RUPP was created by the 1949 National Parks and Access to the Countryside Act, but it has never been clear in law whether RUPPs carry vehicular rights. Successive Acts of Parliament have tried to resolve this uncertainty by requiring local authorities to reclassify their RUPPs as footpaths, bridleways or 'byways open to all traffic' (BOATs). However, none of these attempts met with complete success and there are still many RUPPs in existence in certain local authorities."
I must say that that was the understatement of the month—
"has until now relied on this uncertainty (as to whether RUPPs carry vehicular rights) for motor vehicle access to his property."
The Secretary of State then said:
"Mr Macey has been able to rely on uncertainty . . . until now because it is not an offence to drive a mechanically propelled vehicle on a RUPP. However, the RUPP that Mr Macey uses to access his property will become a restricted byway under the Countryside and Rights of Way Act regulations. It will be an offence to drive a mechanically propelled vehicle on a restricted byway, just as it is already on a footpath or bridleway."
In other words, my constituents and their visitors will not be able to drive their vehicles to such houses, which will be effectively land-locked.
"However, the key difficulty is that the proposed rights of way provisions in the Natural Environment and Rural Communities Bill—which are designed precisely to remove uncertainty about vehicular rights over rights of way—will extinguish any rights of way for mechanically propelled vehicles that may possibly exist and therefore there will be no longer any prospect of a defence for anyone in Mr Macey's circumstances."
That was another nail in the coffin. The Secretary of State then said:
"It should be pointed out at this stage that, in strict legal terms, Mr Macey, and others in his predicament, should have been advised at the time that they purchased their property that to rely solely on the uncertain status of a RUPP for access to a property is legally unsatisfactory. However, it seems that in certain areas, one in particular being Wokingham, it has been common practice among conveyancing solicitors to rely on the uncertainty over vehicular rights over RUPPs. The problem has been compounded by the fact that the local authority has failed in its statutory duty to reclassify all the RUPPs and in doing so clarify what rights exist over these routes."
It thus seemed to me that the fault might lie with one of my two local authorities—Wokingham unitary authority—so I took up the case with its chief executive, Doug Patterson. I shall again crave the House's indulgence for a few moments because important issues are contained in his response to me dated 26 September. He wrote:
"In the past it was quite common for sales of such properties along RUPPs, which will soon be restricted byways, to be concluded notwithstanding the lack of either an express legal right of way over the RUPP or the existence of a prescriptive right of way because it was not a criminal offence to drive over these roads. However, once the law changes, such properties will very probably be difficult to sell.
Awareness of the issue was highlighted last year in the Wokingham District when a house became unsaleable, and consequently land locked, because of the new legislation."
6.45 pm
The chief executive went on to refer to the elderly couple whom I have already mentioned and then wrote:
"As with the previous property, they were unable to obtain defective title indemnity insurance to enable the sale to proceed because it is not possible to obtain indemnity insurance to protect against prosecution. The professional indemnity insurers for the solicitor acting on the purchase and the mortgage company involved were not willing to be involved in the transaction because of the impending changes to the law, even though the couple had lived in their property for over 30 years. It is anticipated that this issue will render houses adjacent to RUPPs unsaleable not only in Wokingham but also nationally.
You should be aware that in the district of Wokingham, there is estimated to be approximately £100 million worth of property built adjacent to 17 of our 23 Roads Used as Public Paths, which will become Restricted Byways, when the NERC Bill provisions come into force."
Mr. Drew : Does the right hon. Gentleman accept that the whole area is becoming problematic? The Government's rights of way legislation has made the situation with regard to easements more complicated in many respects. Additionally, the Commons Bill has been introduced. Does he agree that we need to sit down to try to solve all the problems relating to access, and who owns the right to access, rationally? The easements seem to involve issues relating to the National Trust. I know that the problem affecting RUPPs is slightly different, but the issues are all interconnected and need to be examined properly.
Mr. Mackay: The hon. Gentleman is absolutely correct. The situation has led to unintended consequences, although, as I hope my remarks about my poor constituents have illustrated, they are not trivial.
May I continue for a few more moments to quote from the letter from the chief executive? He wrote:
"Whilst the officers here at Wokingham have been in frequent contact with DEFRA about this issue on behalf of its residents, it is probable that there will be a significant numbers of other Authorities affected by the same issues across the country."
He continued by naming several of them, and then wrote:
"Authorities such as Hampshire and Oxfordshire (who I believe currently have over 300 RUPPs between them), similarly to Wokingham, gave re classification of RUPPs under the 1981 Wildlife and Countryside Act a low priority, deciding that maintenance and enforcement were more important in the Council's statutory Statement of Priorities for dealing with Public Rights of Way work. Even if Wokingham initiated a programme of re classification of the 17 RUPPs immediately, the process would take 2 or 3 years to complete, especially those modifications which were the subject of a public enquiry. This may mean millions of pounds worth of property could be unsaleable for this period of time."
That is the crux. No one is really to blame. I do not believe that the conveyancing solicitors and estate agents who sold those houses—often a long time ago—thought that there were any problems. My constituents who bought such properties have carried out due diligence and behaved responsibly. I do not believe that
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Wokingham unitary authority and other local authorities throughout the country should necessarily have changed their policy, because doing so would have been extremely expensive and thus costly to council tax payers. We all know that expenditure is a matter of priority for local authorities, as it is with the Government. It was thus reasonable that the situation was not a priority until now.
I do not think that the problem is especially the fault of the Government because like virtually every hon. Member, I am strongly in favour of what the Bill is trying to do. The points made by my hon. Friend the Member for South-East Cambridgeshire and the behaviour of people who have been using such rights of way wrongly show that legislation is necessary. My hon. Friend the Member for Salisbury (Robert Key) vividly illustrated what is happening in Wiltshire.
I am not in the business of blaming, but I am in the business of ensuring that my constituents have a right to live in the houses that they have purchased and that they can sell them without an unreasonable restriction suddenly being put on them. There is little more unreasonable restriction than being told that there is no vehicular access to a property for homeowners and anyone who legitimately wants to visit them, including tradesmen. It makes that property unliveable in and unsaleable. That cannot be right. It cannot be what the Secretary of State and the Minister wanted when they and their officials drafted the Bill. New clause 10, which I hope to put to a vote, would resolve the problem.
One or two people have contended that explanatory note 28 solves the problem. It states:
"There are property owners and others with an interest in land who rely on unrecorded . . . vehicular rights of way for access to that land. The Bill ensures that, if the public right of way for"
mechanically propelled vehicles
However, clause 62(1) does not apply to my constituents because they do not meet the requirement of clause 62(1)(b) that the rights are used mainly for the purpose for which restricted byways are used.
I estimate that 90 per cent. of the movements on RUPPs in my constituency are by MPV. Therefore, clause 62(3) does not apply and, presumably, nor does the explanatory note. I hope that the Minister does not hide behind explanatory note 28. If he does, I most certainly will want to press my new clause to a vote.
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