Housing and Regeneration Bill

[back to previous text]

Schedule 3

Main powers in relation to land of the HCA
Mr. Wright: I beg to move amendment No. 18, in schedule 3, page 129, line 24, after ‘HCA’ insert
‘if the Secretary of State is satisfied that—
(a) an alternative right of way has been, or will be, provided, or
(b) the provision of an alternative right of way is not required’.
The Chairman: With this it will be convenient to discuss Government amendment No. 19.
Mr. Wright: Broadly speaking, the procedure set out in schedule 3 is not dissimilar to those found in other pieces of legislation, and I draw to the Committee’s attention the Regional Development Agencies Act 1998, the Highways Act 1980 and the Town and Country Planning Act 1990.
Unlike the comparable powers in those pieces of legislation, in the Bill as drafted, there is no mandatory requirement for the Secretary of State to be satisfied either that an alternative right of way has been, or will be, provided, or that an alternative right of way is not necessary, although it is likely that those are matters to which it is reasonable to expect the Secretary of State to have regard when deciding whether or not to make the order. Including a requirement for the Secretary of State to be satisfied that one of the matters outlined above does in fact apply before making any order to extinguish a public right of way would make the provision far fairer in terms of natural justice and bring it into line with comparable legislative provisions.
Government amendment No. 19 allows the Secretary of State to make an order to extinguish a public right of way over any land of the agency, provided that the statutory procedure is followed first. It is not necessary to exclude land held by the HCA for its own administrative purposes from that power. For example, the agency may take office space in a building that forms part of a larger development for which it is necessary to extinguish a public right of way. The amendment effectively brings the provision in the Bill into line with the provisions that apply to the Urban Regeneration Agency under the 1993 Act. Although I am reluctant to mention it following our earlier discussion, the amendment has a modernised wording.
Alistair Burt: I appreciate the Minister’s explanation, but I wish to raise a couple of matters in relation to schedule 3, largely on behalf of the Campaign to Protect Rural England. The Minister has probably seen a couple of representations by the CPRE, which said in written evidence to the Committee:
“We are similarly concerned by provisions in the Bill that would give the Secretary of State the power to extinguish public rights of way and curtail ‘further investigation’, including a public inquiry, if the Secretary of State considers he/she has ‘sufficient information’ (Schedule 3, Part 2). The implications of this clause need to be carefully examined to ensure the legislative framework provides for a full investigation and public inquiry to take place where necessary. These are essential to maintain public accountability and transparency in decisions affecting rights of way.”
There is, as we know, huge public interest when anything is considered that could alter rights of way. The Ramblers Association believes as a matter of principle that changes should not be made, and certainly not without a public inquiry. It is keen to ensure that the greatest possible care is taken in dealing with any legislation that might in any way conflict with the right, hard won over many years, through public demonstration, public trespass and Acts of Parliament, to ensure that people can exercise rights of way.
That brings me back to concerns that have already been expressed and the need to ensure that, because of the huge powers the agency is taking, there is no constraint on the public’s powers to make sure that the very best and most open inquiry, procedure or public consideration takes places. The provisions give the Secretary of State the greatest power. There is no statutory right, as far as I can see, in schedule 3 to inquiries. There is a duty to ensure that objectors have an opportunity to appear . Paragraph (7)(3)(b) states that when the Secretary of State is considering objectors’ opportunities to appear and be heard he must ensure that that the HCA is present, as well as
“any other persons whom the Secretary of State considers ought to be given the opportunity.”
That does not give those people the right to appear, as the Secretary of State has to agree that they have an interest. The provision therefore puts a large amount of power in the hands of the Secretary of State. She also has the power hold a public inquiry. The measure may be modelled on existing provisions but, because of the potential conflict of interest in the agency’s powers, the matter needs to be considered even more carefully than it has been in the past.
The CPRE made an intervention, too, regarding the powers to override easements, and it discussed the importance of public land. It proposed an amendment, but it was not included in amendment paper. However, I can express its sentiments in this debate, as it concerns the use of powers in clause 11 and schedule 3. The CPRE is interested in the Government’s view on the openness of proceedings dealing with areas of outstanding natural beauty, national parks and the green belt. The CPRE wanted to include in the Bill a
“requirement that in carrying out its functions the HCA shall have regard to the desirability of conserving the Green Belt and designated landscape, Areas of Outstanding Natural Beauty and National Parks and should ensure that its plans and activities fully respect the purposes and objectives of the Areas of Outstanding Natural Beauty, National Park and Green Belt designations in dealing with the extinguishment of rights of way and the powers to override easements.”
I should be grateful if the Minister acknowledged the important powers that the agency is taking. The combination of powers increases the importance of doubling safeguards against conflicts of interest. It would be helpful if he illustrated how those problems will be dealt with, and provided guidance on the ordering of public inquiries and the need to ensure that the relevant people have a right to appear to plead their case.
Lembit Öpik: I have experience of the vexatious use of historic rights of way in my constituency. On one occasion, ramblers insisted on standing in a garden belonging to some of my constituents, and watched them have a barbecue. They said that in the past there was a right of way that led into a forest behind the garden. The problem was resolved at the time simply because the ramblers got bored and went home, but sometimes we need a greater defence of the rights of people who have unwittingly found themselves subject to an attempted enforcement by others of long-defunct rights of way.
Alistair Burt: Should ramblers not have an opportunity to observe a future Government, even at a barbecue, and informing themselves about them? I think that that would be helpful, and no doubt that is why those people stood there so long.
Lembit Öpik: I look forward to the Government’s perspective on the matter, and perhaps the Minister will comment in his reply. I can see the case for the amendment, because sometimes rights of way need to be handled in a common-sense way. The issue is the all-pervading power of the HCA. I am sure the Minister will say that his Administration are benign and will not misuse the power, but how can he be sure that a future Government, perhaps with an ideological objection to rights of way, will not take advantage of the amendment to use the HCA’s powers on a wholesale basis to close down rights of way which, as has been pointed out, have been fought for long and hard and could be snatched back in the blink of an eye?
Mr. Raynsford: I wish to raise a very small matter arising from the extinguishing of rights of way, and I hope that it is appropriate to raise it now rather than in a clause stand part debate. It relates to mobile telecommunication masts or apparatus, which are covered by paragraphs 11 to 15 of schedule 3. In the event of an extinguishment of a right of way, it appears to be the rule that the operator of an affected network mast can abandon their electronic communications apparatus by serving notice to that effect on the HCA. I do not expect many rights of way to be extinguished under the provision, and I do not wish to conjure up a nightmare scenario of masses of rusting, abandoned mobile telecommunication masts. It is, however, possible that some masts will be abandoned, so there is an inequity in the provision.
As drafted, the provision would allow network operators who want to move their mast to another location to recover from the HCA the cost of doing so under paragraph 14. If, however, they simply abandon the mast and leave it to rust, there is no provision for their meeting the cost of its removal. According to paragraph 15, responsibility for such equipment “vests in the HCA”. I suppose that the HCA will be approached by aggrieved parties in the area worried about rusting equipment that has been left behind, saying, “You have now got ownership, please remove it”. There is no provision for the HCA to recover the costs of removal from the operator, and I wonder why that is the case. I do not expect the Minister to give an instant reply, as it is a rather obscure point, but I would be grateful if he wrote to me at a future date to reassure me that we will not end up with the HCA’s budget being eroded by the costs of disposing of unwanted, rusting telecommunication masts.
Mr. Wright: I enjoyed that debate, which usefully set out the Committee’s concerns. I am grateful to my right hon. Friend the Member for Greenwich and Woolwich for his courtesy in accepting that I may need to write to him about his concerns about electronic apparatus. I do not wish to box myself in with regard to future correspondence on the matter, but I imagine that the whole point of the extinguishment of rights of way is that land is coming up for development, and such issues would be part of the contractual arrangements. However, I am grateful to my right hon. Friend for allowing me to write to him about the specifics.
I am interested in what the hon. Member for North-East Bedfordshire said, and he made some important points. It is true that the rights of ramblers have been hard fought for, and it is right that we should protect them as much as possible. The Government amendments strengthen those rights, and the Bill offers a clear procedure for doing so. It is very important that people have certainty and confidence in our proposals. I am intrigued by what the hon. Gentleman said about public inquiries, and I may have misunderstood him. I think that the procedure in schedule 3 is entirely clear: the Secretary of State must publish notices, there is a minimum period of 28 days and, crucially, paragraphs (5) and (6) state that the Secretary of State is obliged to consider any objection that is not withdrawn or otherwise resolved.
It continues:
“The Secretary of State must, before making a final decision, give the objector an opportunity to appear before, and be heard by, a person appointed for the purpose by the Secretary of State.”
Usually, that tends to be an inspector.
12.15 pm
Paragraph 10 explicitly states:
“The Secretary of State must cause a public local inquiry to be held in relation to an objection to a proposal to make an order under paragraph 3 if the Secretary of State considers that the matters to which the objection relates are such as to require investigation by such an inquiry before the Secretary of State makes a final decision.”
As I said, nothing has changed in respect of existing procedures there. If anything, I am keen, by means of the Government amendments, to tighten things still further; to make sure that alternative rights of way are provided, and that the ability to be consulted and heard remain. So I am intrigued by the hon. Gentleman’s sentiments, but I hope that I have reassured him and that he can support the Government in their amendments.
Alistair Burt: I should certainly have said that the impact of the amendments is to improve circumstances and to make things clearer things in relation to the concerns of ramblers, and the need to ensure that alternatives are available.
I am satisfied that the amendments are designed to be helpful and the Minister has answered my points, so I am content at this stage.
Amendment agreed to.
Amendment made: No. 19, in schedule 3, page 129, line 25, leave out sub-paragraph (2).—[Mr. Iain Wright.]
Schedule 3, as amended, agreed to.
Clause 12 ordered to stand part of the Bill.

Schedule 4

Powers in relation to, and for, statutory undertakers
Question proposed, That this schedule be the Fourth schedule to the Bill.
Lembit Öpik: I have one question relating to schedule 4. Paragraph 25 at the bottom of page 143 is entitled “Power to curtail decision-making process”. How will the Minister ensure that no future Minister will use this particular section of the schedule to curtail the consultation process unreasonably? As I understand it, this part of the schedule says that the Secretary of State or the appropriate Minister can effectively close down the investigation process when he is satisfied that enough information is available before making a final decision. There does not seem to be any insurance policy against pernicious abuse.
Mr. Wright: I am grateful for that question. It is very similar to what the hon. Gentleman asked in his previous line of inquiry about public rights of way. I would point out that the Secretary of State needs to act reasonably and in accordance with principles of general administrative law that would be subject to judicial review. As for the suggestion that a future Administration might have a less benign approach to these laws, I suggest to him that we need to work together to ensure that we continue to have a Labour Government.
Question put and agreed to.
Schedule 4 agreed to.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 16 January 2008