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Baroness Byford moved Amendment No. 4:

The noble Baroness said: In moving Amendment No. 4, I shall speak also to Amendments Nos. 23, 24, 25 and 178. Perhaps I may also speak to Amendment No. 5 to be moved shortly by my noble friend Lord Caithness.

Included in the many and vast briefings we have received was one from the Countryside Agency. In its paragraph 4 it describes its recommendations and measures providing for the creation of maps as "sensible and adequate". Those are the words I am after as regards my amendments which deal with the size of land.

Amendment No. 4 inserts in page 1, line 10, the words:

    "is no more than 10 hectares".

The Government also recognise that there are pieces of open country which may be so small that access should not be required. I refer to Clause 4(5)(a). A similar point must also apply to common land. In both cases, the cost of signing, providing wardens, making by-laws and the trouble caused to farmers and land managers may well outweigh the value of providing access to such small portions. What is the point of the

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right to roam if there is precious little land at that point over which to roam? That is why we oppose this minimum size of access land.

Amendment No. 5, shortly to be moved by my noble friend Lord Caithness, declares:

    "and is at least 5 hectares in size".

My comments also apply to his amendment.

I turn to Amendment No. 23 which leaves out the words from (a) and inserts "consists". I refer also to Amendment No. 25, in Clause 1, page 2, line 17, which, after "predominantly" sets in the figure which is 75 per cent or more in area.

These are in fact probing amendments. They attempt to persuade the Government that some parcels of land are too small to be included if we balance the requirements of people walking and those who work the land. First, Amendment No. 18 deletes the reference to land which,

    "appears to the appropriate countryside body to consist".

Therefore whether land is heath, moor, mountain or down is critical to the rights of the landowners and walkers and needs to be determined objectively. The Bill recognises that because the ground of appeal is that,

    "the land does not consist"--

Clause 6(3)(a), page 4. That is in objective terms.

Secondly, both Amendments Nos. 18 and 19 seek to delete the words "wholly or predominantly" so that "open country" means land which is,

    "mountain, moor, heath or down".

The term "predominantly" is wide, but its scope is unclear. Can the Minister say whether it means 51 per cent, 66 per cent, 75 per cent or more of the land? Amendment No. 20 gives a 75 per cent option. Therefore, what area of land is considered to be too small? Can it extend beyond the edge of the heath and, if so, how far?

Ministers said that "predominantly" means "prevailing" or "mostly"--Standing Committee, 4th April 2000, col. 115--which does not make the matter much clearer. The purpose is said to be to give some flexibility to the countryside bodies, yet that flexibility would be applied to take rights away from landowners. The Bill should provide tests that can be applied, rather than leave human rights to the whims of government agencies.

I turn to Amendments Nos. 24 and 25 which also come within this group. Amendment No. 24 seeks to omit the words "wholly or predominantly", about which I am seeking a clearer definition from the Minister. The mapping of access land should be focused closely on land which is,

    "mountain, moor, heath or down",

and not on land that is "similar to", "adjacent to", "partly" or even "predominantly",

    "mountain, moor, heath or down".

By enabling the Countryside Agency and the Countryside Council for Wales to map land which they perceive to be predominantly,

    "mountain, moor, heath or down",

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there is a danger of substantial areas which are not,

    "mountain, moor, heath or down",

being included on the maps. To avoid that possibility the phrase "wholly or predominantly" should be removed from the Bill. Removal of the word "predominantly" would maintain the original government line taken in their access consultation paper in 1998 which referred to access being provided only to specific types of land; not to land and the land around it or bordering it which is not itself open country. The Minister said in relation to my purpose clause that this is not a complex Bill; I feel it is becoming more complex by the minute.

The term "predominantly" was used to describe "open country" in the National Parks and Access to the Countryside Act 1949. However, the context in which the term was used in that Act is quite different from the way it is used in this Bill. That Act defined the areas of land essentially for the purposes of making access agreements over them, while the current Bill is concerned solely with the imposition of statutory rights on owners. Where agreements are involved, a more relaxed definition is desirable. Where the statutory right is involved, the Government should be far more explicit as to which types of land are to be affected. Removing the word "predominantly" will go some way towards making what is currently an imprecise provision much more precise.

Given that Clause 4(5) allows the Countryside Agency or the Countryside Council for Wales to determine the boundary of any area of open country that can be treated as coinciding with a particular physical feature--for example, a wall, fence or road--it is not necessary for the agencies to have the discretion to include land which is predominantly,

    "mountain, moor, heath or down".

They have the flexibility under Clause 4(5) to include narrow strips of land or field corners which are not strictly,

    "mountain, moor, heath or down",

so as to delimit the parcels affected clearly in relation to physical features on the ground such as walls or hedges. No further discretion is needed to include on the maps land which is predominantly open country.

The Minister argued in Committee in another place that, rather than narrowing down what land should be mapped, the agencies responsible for undertaking the mapping should be allowed as much local flexibility as possible. However, the more flexibility that is provided, the greater the likelihood of regional variations in what land is or is not mapped. That may well lead to inconsistencies in the mapping.

An appeals system will be in place for those who feel that their land has been wrongly mapped. But without greater clarity over what land should be mapped, such appeals may create excessive burdens on the agencies concerned, extending the period before which any map may be published and the right of access put in place. By removing the uncertainty and having a clear-cut definition and a basis from which to map, the number

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of appeals against land being included on the map would be minimised. An alternative might be to define "predominantly", for example, as meaning "more than 80 per cent of the land covered within the parcel of land being mapped".

I am sorry that these amendments are somewhat technical; but they are important. I beg to move.

Lord Brittan of Spennithorne: I fully support the amendment proposed by my noble friend. I disagree on only one small point of phraseology; that is, his description of the amendments as "technical". They are technical in a sense, but they also raise points of principle as well as practicality.

Of course, we are all agreed that there is no point in allowing a right of access to tiny parcels of land. We are also agreed that the provision that land should be mountain, moor or whatever in order for access to be granted should not be applied literally to mean that if a tiny bit is not, the right of access should not be given. Those are practical points. But the point of principle is who decides and how it is to be decided where the boundaries apply.

Essentially, the scheme set out in the Bill leaves a high degree of discretion to the public agencies concerned. The question this Committee must decide is whether we want those broad definitions to be applied using words like "predominantly" in relation to the size of the land, giving the discretion to the agencies concerned, or whether we want to be more precise.

I believe that my noble friend's point is absolutely correct. When it is a question of agreement or something of that kind, looser language may be appropriate. But when we are talking about legal rights which, by definition and by concession, take away existing property rights, we must be precise. It is right that those should be determined by Parliament and not by government agencies, however well meaning and even if a right of appeal is provided. For that reason, I believe that the provision to allow the exclusion of small parcels of land should take the form of a definition with a number, whatever it may be, relating to the size and area of land which is excluded, rather than giving the discretion to the agency to take a view.

Similarly, at the other end of the scale, the decision that land can be included if it is--perhaps I may use yet another adverb--overwhelmingly land which comes within the specified categories should not be determined simply by the use of an adverb, whether "predominantly" or any other, which must then be interpreted by the government agency. It should be set out in a more precise form.

Therefore, one should say either--and perhaps going to the extreme--that the whole of the land must be of the category concerned, or--if that goes too far and I suspect that it does--that a specified percentage should be applied. That seems to me to be preferable.

The point of principle is whether decisions on land ownership and legal rights over land be made on a discretionary basis by a public agency or whether they

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should be determined specifically and precisely in an Act of Parliament. On that point of principle, I am firmly of the view that it should be the latter rather than the former, and that is why I support the amendments.

6.30 p.m.

Earl Peel: Having put my name to Amendment No. 24, I want to concur with everything said by my noble friends and I have no intention of repeating it. The provision in the Bill is far too woolly and vague and will give ridiculous opportunities, no matter how well meaning, to the relevant access authorities.

I want to refer to a particular issue and I do not know whether my noble friend Lady Byford did so. I should have thought that Clause 4(5)(b) gave enough flexibility to the relevant access authority to deal with the point raised. I am not happy with the wording, but it tightens up and constrains the mapping process to particular physical features, rather than relying on the woolly expressions "wholly" or "predominantly". Perhaps in reply the Minister will tell the Committee whether that provision is sufficient to deal with the problem.

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