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Lord Whitty: Since the noble Baroness did not like the 25-year period, I am not surprised that she does not like the ability to go beyond 25 years. It is not our intention to signal that we expect the process to go beyond 25 years.

However, we believe that it is prudent to make provision for the period to be extended if, for example, there are specific areas where there has been a failure to deliver on the network and we would otherwise lose a significant number of unrecorded rights of way.

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Rather than a general extension, it is to cover that contingency--given the history of this issue it is not an unlikely contingency--irrespective of the effort, priority and resources we are now putting into it. If this were regarded not as a general extension but one which deals with specific problems, the provision may be more palatable, at least to those who believed that 25 years was the appropriate period. I hope that the noble Baroness will not pursue the amendment.

Baroness Byford: The Minister will not be surprised that I am not enamoured with his response. He refers to areas which may not be covered by the 25-year period. Those areas are undefined.

I am not happy with his response. Unless the noble Lord wishes to add to what he said, I wish to test the opinion of the Committee.

Lord Whitty: Perhaps I may clarify what I said. We are not talking about the likelihood of a general extension but the possibility that there may be one area of the country where the job has not been done effectively. To have that absolute deadline in Devon and lose a large number of unrecorded paths in that county would mean that the national map was not definitive. That is the contingency we intend to cover, not a general extension.

Lord Northbourne: Before the Minister sits down, does he agree that the only way to obtain a complete return is to set a hard finishing date?--otherwise there will always be people who will look for the exception.

Lord Whitty: In general, I agree. However, we know enough about the complexity of the issue to recognise that there may be difficulties even with a 25-year deadline.

Baroness O'Cathain: Did the Minister say that he did not expect the process to go beyond 25 years, but on the other hand some flexibility was needed? Surely 25 years is an enormous length of time. In many other areas of our national activity, such as income tax returns, there are deadlines. It is not beyond the bounds of possibility. People just need to have some steel put into them to get on with it.

Lord Whitty: Even with income tax returns, some people do not meet the deadline, despite the sanctions applied. Because of the complexity of the issue, we need some leeway. The big print is that there is a 25-year deadline, but we have to bear in mind that we have been running the requirement on local authorities for 50 years, since 1949, and most have singularly failed to do it, at least in the non-urban areas. We need a 25-year deadline, but we have to accept that some flexibility may be needed. We are putting a maximum of five years on that flexibility. I hope that noble Lords will accept that.

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Baroness Byford: The Minister has just made the case for putting the issue to the vote. I beg leave to seek the view of the Committee.

10.35 p.m.

On Question, Whether the said amendment (No. 365) shall be agreed to?

Their Lordships divided: Contents, 30; Not-Contents, 56.

Division No. 3


Allenby of Megiddo, V.
Blatch, B.
Bridgeman, V. [Teller]
Bridges, L.
Byford, B.
Carnegy of Lour, B.
Cope of Berkeley, L.
Craigavon, V.
Dixon-Smith, L.
Glentoran, L.
Henley, L. [Teller]
Hunt of Wirral, L.
Jopling, L.
Kimball, L.
Kingsland, L.
Luke, L.
Mancroft, L.
Marlesford, L.
Northbourne, L.
Northbrook, L.
Northesk, E.
O'Cathain, B.
Palmer, L.
Peel, E.
Roberts of Conwy, L.
Selborne, E.
Skelmersdale, L.
Strange, B.
Williamson of Horton, L.
Willoughby de Broke, L.


Addington, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Blackstone, B.
Brennan, L.
Brett, L.
Burlison, L.
Carter, L. [Teller]
Chandos, V.
Crawley, B.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dubs, L.
Elder, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Gould of Potternewton, B.
Hollis of Heigham, B.
Hoyle, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Judd, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Patel, L.
Puttnam, L.
Ramsay of Cartvale, B.
Sawyer, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Simon, V.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

9 Oct 2000 : Column 128

10.45 p.m.

Clause 52 agreed to.

Clause 53 agreed to.

9 Oct 2000 : Column 129

Schedule 6 [Amendments relating to creation, stopping up and diversion of highways]:

Baroness Miller of Chilthorne Domer moved Amendment No. 365A:

    Page 60, line 33, at end insert--

(" . After section 26 of the 1980 Act there is inserted--
"Application for a public path creation order.
26A.--(1) Any person may apply to a council for the area in which that land is situated for the making of a public path creation order to create a footpath or bridleway over land.
(2) An application under this section shall be in such a form as may be prescribed and shall be accompanied by a map, on such a scale as may be prescribed, showing the land over which the public right of way would be created, and by such information as may be prescribed.
(3) Regulations may provide--
(a) that a prescribed fee is payable on the making of an application under this section; and
(b) that further prescription charges are payable by the applicant if the application is granted.".").

The noble Baroness said: This group of amendments--Amendments Nos. 365A, 381A and 402B--seeks to start to improve the network and to guard against a net loss. It seeks to widen the category of those persons who may take action to improve the rights of way network.

Amendment No. 365A is concerned with creation because it adds, after Section 26 of the Highways Act 1980, that any person may apply to the council for a creation or diversion order. The aim of the amendment is to build on some of the success that the parish partnerships have had in involving local users and landowners in their own rights of way network. That experiment, started by the Countryside Commission, in partnership with local authorities has been extremely successful. Many agreements were reached and that paves the way for a more even-handed approach to the creation of a network.

Amendment No. 381A seeks to change the category of person, so that it is no longer restricted as it is on the face of the Bill, to any person being able to apply for a diversion order for the same reason. Of course, in this context, "person" may apply equally to, for example, a parish council.

In replying to the noble Baroness, Lady Carnegy, earlier in our Committee when she asked whether there would be more or less of a network, the Minister said that of course walkers will make their claim. But, as the Bill stands, walkers cannot be very creative with other local people because they are not able to apply for creation or diversion orders. These two amendments seek to remedy that.

Amendment No. 402B is a consequential amendment which would remove the requirement for applicants making orders to issue certificates of their interest in the land. I beg to move.

Lord Northbourne: I support this amendment on the principle that I believe that we should approach the rights of way network with a positive rather than a negative attitude. I shall speak on this subject at greater length on one of our later amendments.

9 Oct 2000 : Column 130

Lord Whitty: These amendments would give the public, or anybody, in effect, the right to make a formal request for a creation order. In most cases, those creation orders would be over someone else's land. Of course we wish to see the use of creation orders and the use of existing powers to create footpaths and bridleways and to develop new connections in order to create a whole new and clear network.

However, the question of anybody having the right of formal application raises wider issues. There is the question of who should pay for the compensation which arises out of the public path creation order. The amendment will also allow regulations to be made about how the applicant is to be charged for the costs of the order. However, it does not appear to make provision for any other costs.

The consultation paper which we issued last year set out the reasons for the inadvisability of giving people an express statutory right for formal application for creation orders. Public highways are for everyone's use and benefit. It is therefore more appropriate for the question whether new creation orders are needed for it to be the responsibility of the appropriate public authority.

That is not to say that other people will not have a say in local authority strategies; they will. They can make representations to the local authority. They are involved in the consultation process on the development of the local rights of way network and can make their points to the local authority. But it should be the local authority which takes the decision to apply for a creation order when, almost by definition, that will involve more than one other landowner. I therefore have some sympathy with the need to ensure that the public in general are involved in the process. However, I do not believe that formal applications is the way to do it.

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