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Lord Whitty moved Amendment No. 396:

The noble Lord said: I indicated at Second Reading that we proposed formally to change the name of the Nature Conservancy Council (England) to English Nature, which is the name by which the body is generally known. The Nature Conservancy Council (England) was one of the three country councils set up following the Environmental Protection Act 1990 to replace the former Nature Conservancy Council. However, since it came into existence, by and large it has been known as English Nature.

Amendments Nos. 396 and 397 relate to Schedule 6 to the Bill. The larger number of corrections in the following amendments relate to Part III of the Bill. I must confess to the Committee that one or two amendments will be needed to Part I. Unfortunately we missed them but will return to them on Report. I apologise to the Committee but hope that the principle will be accepted. I beg to move.

On Question, amendment agreed to.

[Amendment No. 396A not moved.]

Lord Farrington of Ribbleton moved Amendments Nos. 397 to 402A:

    Page 72, line 24, leave out ("the Nature Conservancy Council for England") and insert ("English Nature").

    Page 73, line 20, leave out from ("carriage-way") to end of line 23.

    Page 73, line 31, after ("1") insert ("or 6").

    Page 73, line 48, leave out from beginning to end of line 2 on page 74 and insert--

("(a) after "or diverted" there is inserted "or where it appears to the Secretary of State as respects a relevant highway as defined by section 118B(2), 119B(2) or 119D(2) that it is expedient as mentioned in section 118B(1)(a) or (b), 119B(1)(a) or (b) or 119D(1)(b) that the highway should be stopped up or diverted",").
Page 74, line 25, leave out ("countryside") and insert ("conservation").

    Page 75, line 6, leave out ("may be") and insert ("are").

    Page 75, line 13, leave out ("he") and insert ("the Secretary of State").

On Question, amendments agreed to.

[Amendment No. 402B not moved.]

4.30 p.m.

Lord Luke moved Amendment No. 402C:

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    Page 78, line 5, leave out ("three") and insert ("two").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 402D and 402E. New Section 121C allows a council to refuse to determine an application for a stopping up or diversion if a similar application has been refused by the Secretary of State during the previous three years. That provision has similarities to, and may have been inspired by, Section 70A of the Town and Country Planning Act, which allows councils to refuse to determine a planning application if a similar one has been refused by the Secretary of State in the past two years. Obviously, that is to prevent unmeritorious repeat applications grinding down local residents.

However, the planning provision referred to above is subject to a requirement that there has been no significant change in material circumstances since that decision. Such a change could justify a different decision. The Countryside and Rights of Way Bill provision does not include a "no change of circumstances" requirement. These amendments would reduce the period to two years and require a finding of no material change in circumstances. Subsection (2) would therefore become unnecessary when such an obligation was imposed and is therefore proposed to be deleted. I beg to move.

Lord McIntosh of Haringey: I am afraid that these amendments would undermine provisions in the new Section 121C which the Bill inserts into the Highways Act. Those provisions enable local authorities to decline to determine applications from land managers and local authorities for orders diverting or closing rights of way when similar ones have been refused by the Secretary of State on appeal within the previous three years.

We believe that three years is a reasonable intervening period. After all, the original application will have been thoroughly assessed by the local authority and by the Secretary of State. We do not believe either that applicants should be able to plead a change of circumstances during the three years. It really must be for applicants to try to get it right the first time. There must be some sort of balance to prevent repeat applications every time someone thinks that his circumstances have changed. Again, we believe that it is reasonable for there to be a three-year gap after an application has been refused on appeal before an authority should be required to determine a similar one.

There is nothing to prevent someone from submitting a further application within the three years and the authority would have the discretion to determine it if it wished. Having said that, we believe that there should be a slightly different approach to schools because their applications concern the safety of staff and children.

For that reason, the Bill already requires that before an authority declines to determine a similar application from a school within the three-year period it must first consider whether there has been a

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substantial increase in the risks to the children and staff. We do not believe that there is a case for making similar provision for applications from land managers.

Lord Luke: I thank the Minister for that reply. I am interested in what he said about schools and rather disappointed by his approach to the substance of the amendments. But in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 402D and 402E not moved.]

Baroness Scott of Needham Market moved Amendment No. 403:

    Page 78, line 35, at end insert--

("(5) A council may decline to determine an application under section 118ZA and 119ZA if--
(a) it does not have the power to make a public path extinguishment order under the provisions of section 118 above, or a public path diversion order under the provisions of section 119 above, as appropriate, in respect of the footpath or bridleway to which the application relates;
(b) having regard to requirement of either section 118 or 119, it also appears to the council from the information currently available that any such public path order made by the council would not be capable of being confirmed, whether by the council or by the Secretary of State.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 409, 420 and 441.

Amendment No. 403 is a small technical amendment designed to save local authorities time and money by enabling them to decline to determine an application to divert or extinguish a public right of way under proposed new Sections 118ZA and 119ZA.

Currently, the Bill gives no indication of the criteria against which those sections should be determined or the grounds for accepting or rejecting them. This amendment makes it possible for an authority to refuse an application at an early stage on the grounds that it would not, at the end of the process, be possible for it to confirm it, perhaps, for example, because it can demonstrate that the path is still needed.

Amendment No. 409 relates to the subject of ploughing. As I said before, lowland arable counties, like Suffolk, will still be relying on the public rights of way network for access to the countryside. Apart from the many difficulties already discussed in relation to getting new routes on to the definitive map and protecting the status of those already on it, users also face a whole range of obstructions. Despite the many real improvements brought about by the 1990 Act, ploughing and cropping remain serious obstacles to the enjoyment of public rights of way.

At the moment, a member of the public can take action with regard to cropping and structural obstacles but have to rely on local authorities to deal with paths which have been ploughed out. The amendment would empower individuals to take action on ploughing offences and would help many voluntary footpath workers. There would be no added burden on local

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authorities. Law-abiding farmers, of whom there are many, would have nothing fear from this change while walkers seeking to enjoy their lawful rights would benefit greatly.

Amendment No. 420 also relates to the question of obstructions. Currently a member of the public may use Section 56 of the Highways Act to oblige the local authority to repair it, provided it can be shown, first, that the highway is maintainable, and, secondly, that it is out of repair. That is reasonable and well understood. But under Clause 59 of the Bill, a complainant seeking the removal of an obstruction must also demonstrate that the status of the right of way is not seriously disputed and that the highway authority is unable to demonstrate that its backlog prevents it dealing with the case in a reasonable time.

I suggest that the number of disputed routes and the number of obstructions on local authority books will make it very difficult for anyone to use the provision in the Bill to seek the removal of an obstruction. The fact that someone would be expected to demonstrate that all four criteria had been met in order to be safe from the possible award of costs acts as a significant deterrent to anyone wanting to use the provision.

It would be far better if the Bill replicated the Highways Act and required the first two tests: that the route and the obstruction qualify. If those tests are satisfied, the court could make the order but allow the appropriate length of time for the local authority to deal with its own priorities and the question of disputed routes.

I should say at this point that the wide range of exemptions from the definition of obstruction is also of concern. It is very difficult to see why, for example, a caravan does not constitute an obstruction for the purposes of the Bill. To exempt anything other than a permanent dwelling will be storing up an additional batch of problems for the future.

Finally, I turn to Amendment No. 441. Under current legislation, user groups and individuals are able to bring a case of obstruction of the highway to the magistrates' court. That usually occurs where, for some reason, they have been unable to persuade the local authority to deal with the obstruction.

But it is a matter of great frustration to those bringing the case that even where the magistrates convict the perpetrator, there is still no power to remove the obstruction. The most well-known example is the van Hoogstraten case where the company was found guilty of obstruction, fined and ordered to pay costs to the Ramblers' Association. Despite that, to this day, the obstruction remains. Clause 60 helps to solve that by enabling the court to order the person to remove the obstruction. We should like to extend that by enabling courts to remove the obstruction and recover costs if the perpetrator refuses to comply. I beg to move.

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