Natural Environment & Rural Communities |
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Paddy Tipping (Sherwood) (Lab): I am delighted to follow the hon. Member for South-East Cambridgeshire (Mr. Paice), who spoke in a moderate, thoughtful way. He said at the beginning and end of his speech that there is agreement across the House, and there is. I ask the Minister to reflect on the political situation. He demonstrated remarkable political acumen in the first week of May, and he will need to repeat that trick now. I remind the Committee that I am the vice-president of the Ramblers Association. I am delighted that it is speaking with one voice—a bit like new Labour. I just want to reinforce several points that the hon. Gentleman made. First, we must have some clarity today about the commencement date. Second Reading has been followed by private discussions, yet I do not have a clear idea about what the Minister and his officials have in mind. If he wants my support, I need to know the commencement date. Column Number: 265 Secondly, if the Minister wants my continued support, his officials must do more survey work. As the hon. Member for South-East Cambridgeshire said, there is a big disparity between the work that the Minister’s officials have undertaken and the work that the Green Lanes Environmental Action Movement has done. My hon. Friend the Member for Bassetlaw spoke this morning about the nine alleged cases in Nottinghamshire. He knows of nine cases in his constituency. I know of many more in north Nottinghamshire. More work needs to be done on what appears to be happening, which is a surge of new applications and claims. Will the Minister give me an undertaking that that work will be done? Thirdly, and most particularly, I am astonished about the legal advice. I am not convinced by it. I have seen counter legal advice, but that is no good until we have seen the advice that the Minister is receiving. I remind the Minister of the political situation: there is support throughout the House on the issue. If he wants continued support for this part of the Bill, I want an assurance today that the legal advice will be published. I give him an assurance that, if it is published, people will pore over it and produce counter-arguments. I am strongly of the opinion that counter-arguments can be put forward. The hon. Member for South-East Cambridgeshire hit the nail on the head when he said that it is other path users who are having their rights abused. That abuse must stop quickly. Finally, I say to my hon. Friend that the previous Minister started us on what has been a long road. I want a final promise from the Minister today that consultation will finish. I want some early action on the issue. The hon. Member for South-East Cambridgeshire spoke in a gentle way. I have been less temperate in my demands. The demands are firmly in front of the Minister. I want reassurance. People who use the countryside for quiet recreation want action and want it quickly rather than slowly. During the rest of the debate, I hope that the Minister will reflect on the demands that I have made. Mr. Breed: I do not want to reiterate all that was said by the two previous speakers, because I agree entirely with what they said. I made an intervention about my understanding of the human rights implications for those currently enjoying rights who might later feel denied them. I tried to find out how many applications we have had in Cornwall, which might appear to be a place that would have many applications, but it does not seem that there have been many at this stage. Saying that might elicit loads, which may be difficult. I am aware of one problem. I suspect that all hon. Members will have at least one or two issues that go on from year to year. One of mine involves Potford lane and Shillamill lakes. It is a real problem. It is supposed to be a road, or a BOAT, but nothing can go down it. Nobody in their right mind would take a vehicle down it, except those who wish to use trail bikes and 4x4s. Such people come from all over the place. Six years ago, it was a modest problem affecting a few people who live in the vicinity three or four times a year. It has grown in the past six years from being an
1.45 pmI pay tribute to the county council, which to be fair has attempted to use current legislation to control the situation. The best way of doing so would be to get a few hundred tonnes of tarmac and tarmac over the byway, because it would then be of little interest to those people. It is hardly top of the list of priorities for cash-strapped local authorities that want to carry out many other schemes. I have described an instance of this huge, growing nuisance, and if we do not tackle it quickly, we shall have a further massive explosion of such activities. That is the import of what has been said about the commencement date, and there are three aspects to it. When should the commencement date be? Everyone recognises that it should be as soon as possible, and the amendments provide the opportunity for a discussion about the dates. The date of publication of the Bill is an important date, and all properly completed applications received and accepted before that date ought to be considered under the previous rules, otherwise, there might be implications. The issue about rights that would have been allowed under the previous legislation might provoke a human rights challenge, although I cannot be certain until we see the advice. Applications received just after the publication date are perhaps going through at this very moment. Those applications have not been granted. The people were aware of the publication date, and they were put on notice. Being put on notice is contrary to the human rights, and one does not automatically believe that the application will be successful. One might hope so, because the publication of the Bill has placed any applicant on notice that legislation is coming in. Those applications should not be entertained under the rules that applied before the publication of the Bill. Finally, there are the existing rights. My constituents who live in and around Shillamill lakes and Potford lane are desperate for legislation that will remove the rights of those who are making their lives a misery and restore to the people who are legally entitled to use the byway the right to use it. They cannot use it now because its condition has deteriorated due to horse riding, scrambling and so on. No one in their right mind would walk along the byway in question, as they would probably twist an ankle, or even break a leg. The heart of this aspect of the legislation places great demands on the Minister and on his team to satisfy those points. There are those who have legitimately applied for rights; those who have applied since the
John Mann: I have three brief points to make. First, the research about the level of applications carried out for the Department for Environment, Food and Rural Affairs, which I think the Minister was contemplating when he spoke on Second Reading, is simply and factually wrong. In my constituency there are more applications. In fact, from my house I can see more byways that are subject to applications than are on the DEFRA list for the whole of Nottinghamshire. As the Minister may know, I do not live at the top of Clarborough hill, and the county is very flat. We have already identified 17 proposed traffic regulation orders to try to block any new rights just in the Clarborough area. It is a much bigger problem than DEFRA officials have suggested. Over the past few years there has been some discussion between the Minister’s predecessor and his officials and myself about how many applications there have been in Nottinghamshire. I kept giving them details, and I kept being told that there were not that many. That is because in Nottinghamshire, even this week, officials at the county council are dealing with single applications that actually cover a multitude of them. One letter from a person submitting multiple applications is counted as one application. That does not give the Minister the proper scale of the problem. There is a kind of consensus on my second point. I still remain somewhat unhappy about it, which is rather ironic because I have probably spoken and demanded action on the matter more than anyone in the House during the last Parliament. I agree with the hon. Member for Brecon and Radnorshire—we need something that will work. Kids on bikes in my area are breaking the law already and giving them the legal right to do what they are doing is not a good thing. However, they will not simply go away, and I would like to see the culture changed. There is a plethora of quad bikes, and these midi bikes for three and four-year-olds, and the kids riding them go out of the estates and villages and into the fields and woods. As they get older they go further—they go everywhere. They do not go on roads because it is not as much fun. Then they see organised groups, which people pay to join, creating routes. Once 20 or 30 quad bikes out of the white vans have gone round the route, the kids follow them because there are some nice, churned-up routes. There is a big rut that they can zoom down and fire up out of, which is much more enjoyable. When I walked the Pennine way, I had problems getting across certain parts of the route—the official right of way. I could see exactly what had been happening, and how what was initially a little divot had eventually turned into the equivalent of a
I do not know what the Minister’s legal advice is, but it is bound to say that there will be issues that could cause problems and delay. The last thing I want is delay. I would like kids—and adults, too—in my area who want to ride quad bikes to have somewhere to go to do that. However, I do not want them down any lane that they want to use legally—with these rights that have come in—or illegally. I do not want them clashing with horse riders or dog walkers. I do not want the woods in places like Warsop chock-a-block with kids on bikes creating mayhem at all hours, destroying wildlife, the environment and people’s peace. That is not reasonable, and we need to get a balance of rights. A. W. Wainright’s favourite mountain is Great Gable, and I agree with him. Anyone who knows Great Gable, one of the greatest mountains in England, will know that it is impossible to walk up it using a proper footpath. It is like going up a staircase, and it knackers your knees going down. It is the most beautiful mountain in this country and it is not just a nightmare to go up it but a nightmare to go down it, because of overuse. There is a balance to be found between people’s rights to go there and preserving the natural environment. It is a difficult and complex issue that needs more attention than it has been getting. We must have a solution that will make illegal this plethora of upgrades that will allow the otherwise illegal, random use of motorbikes and quad bikes. In other words, we need a block. Whatever the deadline, and however it is carried out, that must be done. It is clearly the case that a plethora of new applications have been made in a coherent way. There have been advertisements on websites and solicitors have made applications. It is clearly unreasonable to have that big block of upgrades becoming legal. However, there is another problem. The applications in my constituency were put in before the consultation. That is partly why there was a consultation; I had spent every day in this place explaining the problem to the previous Minister. There were mass meetings in all the villages, with people demanding action. Evidence was provided. I gave him all that. Whichever date is chosen from the options that have been suggested, the applications will predate it. There must be a solution. I am told that it will take three or four years for the applications to be dealt with. There is a legal process under way, but, whatever we agree, we will be agreeing another set of laws. There is a clash. There are quite a lot of lawyers’ paradises around at the moment; will this be another? I can see one route round the problem for the Minister to contemplate. I raised it earlier. He could see whether, in addition to the other things that are being done, the applications that have been submitted could be assessed—as in one of the amendments tabled by the hon. Member for South-East Cambridgeshire—not on the historic rights, but in relation to the wider agenda. In other words, I am quite happy to take the risk of determining the applications in my area in
I would hate to see the earliest applications, which, across the country, are some of the most problematic, escape what the Government are attempting to do in the Bill due to an anomaly. So, over the next few weeks, the Minister and his officials need to give some thought to whether this part of the Bill has been put together in exactly the right way. Mr. Nick Herbert (Arundel and South Downs) (Con): I rise to support what other hon. Members have said and, in particular, the amendments that have been tabled by my hon. Friend the Member for South-East Cambridgeshire. I share the concern about how we balance recreational use of the countryside against the needs of the environment and the need to preserve quiet enjoyment of the countryside. We should not ban anything lightly. In my constituency, I have already received representations from people both sides of the argument. Indeed, the issue was the subject of one of my first surgery visits. A very reasonable biker came to see me expressing concern. However, I have to say that I agree with my hon. Friend and that I find myself on the side of the argument that says that it is right to close off future applications. The difficulty is quite well illustrated by another Roman road, Stane street, part of which runs through my constituency. It is a bridleway that runs through some outstandingly beautiful countryside in the villages of Slindon—a National Trust village—and Bignor. The countryside is so magnificent that I dare say that it would even rival the rural idyll of Sheffield. The Trail Riders Fellowship applied to turn the bridleway into a BOAT, but that application was very properly rejected by West Sussex county council. The Trail Riders Fellowship is appealing. What is the status of such appeals to the Secretary of State in the context of the amendments? I do not seek to draw the Minister into the treacherous territory of his quasi-judicial functions; nor do I seek to invite him to reject the appeal, although I hope that he does, but I would like to know what the status of such appeals is. We should be concerned about any legislation that is retrospective. However, having thought about this a little, I have difficulty understanding why such arguments should hold sway in respect of this measure and why the Human Rights Act 1998 should hold sway. 2 pmAs other hon. Members have said, we are not proposing to take away a pre-existing right or current enjoyment. This use of a procedure to try to change bridleways into BOATs seems to be almost a lacuna in the existing law. It is not common sense that simply, because two millennia ago Roman centurions were trundling chariots up and down what was then a made-up road, a present footpath in an area of outstanding natural beauty and a scheduled ancient monument should be used for motorised vehicles. Any reasonable person who was asked whether it was acceptable to
The reason for the measure is that harm is being, or will be, done by such a change of use of rights of way. If that is so, there is no case for delay and it is justifiable to prevent that harm as soon as possible. There has been a build-up of applications in West Sussex, as elsewhere in the country. The measure was telegraphed some time ago and it is perfectly proper to consider retrospective amendments to prevent further abuse of historic provisions. The Chairman: May I inform the Committee that, as we are having a wide-ranging discussion, I am minded not to have a stand part debate? I thought it fair to inform hon. Members of that now in case it affects their decision on whether to speak in the debate. Ms Angela C. Smith (Sheffield, Hillsborough) (Lab): I shall add to the confusion of the DEFRA figures by reading out an email that I received from the principal rights of way officer at Sheffield city council. Sheffield city council works closely with Derbyshire county council and surrounding authorities. The email states:
the county council—
That makes Derbyshire, with Wiltshire and Oxfordshire, one of the hot spots of this problem. In Sheffield—which may be a rural idyll, particularly as there could be up to 50 claims in the area within the city boundary but outside the Peak district—the view of the rights of way officer is:
The professional view is clearly that this is a major problem. I referred on Second Reading to the already devastating effect on the principal Roman road close to my constituency—the road from Glossop to Hope. It is a beautiful road and local folklore has it that ghostly legions of centurions have been seen marching on it, although I doubt whether they would dare to nowadays given the number of motor bikes rampaging around in the area. For ramblers and walkers, it is incredibly irritating constantly to have to give way to trail bikes and 4x4 vehicles. Not only that, it is great fun for walkers in areas such as the Peaks to negotiate their way across a peat bog, such as Kinder or Bleaklow, but it is not fun, as the hon. Member for Banbury said very eloquently this morning, to have to wade through a sea of mud in winter which then turns into series of knee-wrenching ruts in summer. Anyone who has walked such badly damaged lanes knows exactly what that means. I understand that the legal advice that the Minister has been given, which I press him to release, relates to human rights. I wish to say two things about that. First, if the advice is about the rights of trail riders to use the lanes, I would argue, as the hon. Member for
If the legal advice, however, is about the rights of trail bikers and 4x4 users to put in a claim before the Bill becomes law, I would argue that that is not legitimate, in my layperson’s view. In effect, we would be saying that citizens have a right to subvert new laws before they come into effect and the will of the country. That seems an illogical view of human rights. I look forward to seeing the advice. Along with my hon. Friend the Member for Sherwood, I ask the Minister to listen carefully to the responses and challenges to the advice—if it is released—from the Ramblers Association and from people such as us. I also ask the Minister to consider carefully the need to act quickly if a large number of the claims are acceded to by local authorities. Many are already being processed. It would be much harder for local authorities to deal with the hundreds of traffic regulation orders that would be necessary than it would be for the Government to do something so that local authorities are not put in that position in the first place. Finally, I wish to refer briefly to the comments about trail bikers. We must distinguish carefully between trail bikers who perform a legitimate activity, who practise a sport and who are licensed to ride their bikes, and illegal users. There is a real danger that the legislation will be understood as dealing with all illegal use of motor bikes everywhere—that is certainly how it has been interpreted in some quarters. There are problems with motor bikes in my patch and across Sheffield. They go through ancient bluebell woods; they are damaging the trig point at Bolsterstone in my constituency; and they are damaging Greno wood. However, the legislation is not intended to deal with that. I have a great deal of sympathy with what my hon. Friend the Member for Bassetlaw said, but I suspect that the Home Office will have to introduce other laws and measures to deal with such problems. Mr. Williams: I hesitated to make a contribution to this debate. However, as the discussion has been wide ranging, perhaps I could just make a few points. In the Rhayader area in my constituency, the use of motor bikes in the countryside is a fundamental part of the local economy. Several local, national and international events that depend on motor bikes having access to the countryside take place there. Of course, the Bill is viewed with a certain amount of concern by those who are involved, and I have been at pains to explain to them that any rights of way that they have now will be unaffected by the legislation. Obviously, they would like to extend the rights of way that they use, but it is as well to make it clear that the legislation is not retrospective and will not affect the rights that motor cyclists and other vehicle users have at present. Column Number: 272 As the hon. Lady said, there are responsible and irresponsible people. Members may find this difficult to imagine, but I was photographed recently in some ruts that came up to my chest and that had been made by four-wheel drive on the Owain Glyndwr long-distance footpath. Part of that footpath is a BOAT that is used by 4x4 operators. Luckily, the local authority has put a stop to that for a month to consider the issue. I think that it will come to the conclusion that it cannot allow that important path to be used by vehicles. I am not sure how the local authority will implement that conclusion. The issue is not just that the vehicles were scarring the countryside. They were destroying a farmer’s land, on which he depended to make a living. The farmer said to me that if he had created that mess, he would have been prosecuted or had his farming subsidies withdrawn. I understand what he was telling me. Not only that but the silt that was flowing off the ruts was going into tributaries of the Wye and interfering with spawning grounds for lamprey and salmon. As a result, a site of special scientific interest was being destroyed. The issues are wide ranging. I make the point that just because an application has gone in does not mean that it will succeed. It seems to me that the ones that are most likely to succeed have gone in already. Many of the applications that are going in now are real flyers. John Mann: It was the rights of way for which maps are most readily available—not necessarily the cases for which results were easiest to obtain but those for which the initial information can be most easily obtained—that were the subject of the first applications. When dealing with historic rights, it is a question of how much research one is prepared to do and how many old maps one is prepared to dig out. Mr. Williams: There is an element of that to the issue. The Romans are not the only ones that we must blame. Many decisions depend on tithe maps. If one looks at those maps, one can see that there certainly was an incentive for landowners to have rights of way and roads on their land, because they did not pay tithes on something that was for public use. So, if they could get a few roads stuck on their land, they ended up paying less in tithes. I do not know what influence the landowners had on the people who drew up the maps, but perhaps we should blame them rather than the Romans. The process is an obscure one. Those who have been through it will know how complicated and soul-destroying it is. That leads me to the conclusion that we reached this morning: what we need is a thorough-going review of the rights of way legislation and the rights of way network. The system serves nobody. This is a minor improvement and we are struggling with it. We need something that will equally upset ramblers, the British Horse Society, the Land Access and Recreation Association, trail riders and landowners. We are struggling with something that has no purpose in the society in which we live. I will not stray that far. It seems to me that the point that was made about
Jim Knight: We have had a useful debate. Clearly, the clause goes to the heart of the key concerns that have been widely expressed. I want to make it clear to the Committee that I share those concerns about the recording of historically mechanically propelled vehicular rights—that is such a fine phrase—in the rights-of-way network. I pay tribute to all members of the Committee who spoke about the work that they have done on the issue, but in particular to my hon. Friend the Member for Bassetlaw for the work that he has done consistently for a number of years. To some extent, we would not have got where we are now had it not been for the work that he did with my predecessor. I pay tribute to him for that. I am delighted that the clause is so popular with the Committee that we have a discussion about when to commence it. I will come on to the detail of that important issue in a moment. First, though, I want to make some comments about the clause itself. To clarify the current situation, the rights of way for mechanically propelled vehicles can be established without the requirement for any consideration of the impact on the environment, the effect on local people or the effect on other users of that right of way. The only consideration is whether that right of way can be reasonably alleged in the past for vehicular use, including chariots. 2.15 pmCurrently, no distinction is drawn between rights for mechanically propelled and non-mechanically propelled vehicles. That means that the historical use by horse drawn vehicles or an expressed dedication for such vehicles can also give rise to public vehicular rights for modern mechanically propelled vehicles. In many cases when the rights came into existence, the internal combustion engine had not even been invented. Once created, a right of way can be extinguished only by statute, whether the right of way is recorded in the local authority’s record of rights of way, known as the definitive map and statement, or not. The common law maxim “Once a highway, always a highway” applies, and it matters not if the way has fallen into disuse. That is why historical evidence of rights of way that may have passed out of use many years ago can support an application to record a way on the definitive map. Proposal 4 in the Government’s consultation was a remedy for that anomaly, and this clause will deliver it, in so far as the clause extinguishes mechanically propelled vehicular rights when they have arisen from historical non-mechanically propelled vehicular rights. It will prevent the recording on the definitive map of byways open to all traffic, except when the conditions of the limited exception set out in the clause are met. In our discussion of the political reality, as the situation was put to me by my hon. Friend the Member for Sherwood, we must celebrate and not lose sight of the fact that we are taking action against historical
The clause will further address unforeseen consequences of the Bakewell judgment, which significantly broadened the possibility of rights for mechanically propelled vehicles. Its effect has been to allow, subject to certain conditions, the use of mechanically propelled vehicles right up to the present to be counted for the purposes of acquiring mechanically propelled vehicular rights. Claims based on such usage may be blocked by the clause, and the rights extinguished. The extinguishing of unrecorded mechanically propelled vehicular rights will assist directly with enforcement. It will ensure that those historical rights cannot be used as a defence against prosecution for driving on a footpath, bridleway or restricted byway under section 34 of the 1988 Act. The clause extends to ways already recorded on the definitive map as footpaths, bridleways and roads used as public paths, as well as to land where there is no physical evidence of a route but over which historical rights from several hundred years ago can be uncovered. By the time this clause has commenced, they will all have been reclassified as restricted byways. The scope of the legislation does not extend to minor roads maintained by local highways authorities which fall outside of the rights of way network. The clause further ensures that a private vehicular right of way will be conferred on property owners or occupiers who rely on unrecorded public vehicular rights of way to access their premises by motor vehicle. I shall return to the issue of those individuals soon, because they are critical. I should caution that, as we have heard in the context of the Ridgeway, removing historical rights is only part of the solution to this serious problem. Some rights have been or will be established. My hon. Friend the Member for Bassetlaw noted that the destruction of wildlife, of the environment and of people’s peace continues to occur, and it will be up to the local highways authority to consider using traffic regulation orders. As I mentioned earlier, we are reviewing that. All the amendments seek to apply an element of retrospective consideration to applications to record a mechanically propelled vehicular right. I pause at this moment to endorse the motivation behind them, which I fully understand. We have a serious problem and we need find a way to address it, which is what lies behind the tabling of the amendments. Amendment No. 71, in conjunction with amendments Nos. 72 and 73, would apply a sort of suitability test to be applied by the local authority to applications on or after the date of parliamentary introduction of the Bill. Aside from the human rights considerations, which I shall come to later, I have reservations about a statutory approach to local authority assessment of the suitability of claims lodged. That point was also raised by my hon. Friend the Member for Bassetlaw. A similar approach was taken to the reclassification of roads used as public
Amendments Nos. 122 and 123 are rather more direct and would provide for the retrospective application of clause 62. There are legal difficulties in applying new legislation retrospectively, which I shall come to, because there is a general presumption against legislation operating in this way. There are clear human rights issues that cannot be ignored. When I talk about human rights, in many ways I am not talking about the rights of 4x4 drivers and trail bike riders that my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith) referred to. I am mostly talking about the rights of property owners to which I referred earlier. Article 1 of the first protocol of the European convention on human rights provides that
Although clause 62(3) gives a private right of access to those with an interest in land who need to use the public right of way to gain access to their property at the time of commencement, it is not beyond doubt that convention rights may be infringed because those rights of access to property may be reduced. We have taken legal advice on the issue and it states that giving users the opportunity to apply to register for a public right of way before commencement would avoid this problem. We are after a like-for-like substitution of public for private rights and we need to give adequate notice of that substitution. |
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