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Baroness Miller of Chilthorne Domer: I rise to speak to Amendment No. 441A in this group. The purpose of the amendment is to address an issue which prevents a process being streamlined, both for local authorities and the Secretary of State.
Under current law, when an authority makes an order to change a right of way it must give notice and seek representations. At present, because the law is not understood, objections are frequently made which cannot be considered in determining an order. The only factors which can be considered are whether a right exists and, if so, its route and status. Factors which give rise to objections but which cannot be taken into account are the effect on nearby properties and whether the use is appropriate.
At present, a surveying authority faced with any such objection must, unless it can secure its withdrawal, forward both the order and the objection to the Secretary of State for determination. Similarly, the department has no option but to proceed to determine the order, including, where necessary, by holding a local inquiry. That is both lengthy and costly in terms of procedure.
An inquiry or exchange of representations is required to take place. That is futile. Even if the grounds for objection are sustained, they cannot lead to a refusal to confirm the order. Alternatively, an inquiry to hear relevant objections is needlessly prolonged and may spend considerable time debating issues which are irrelevant to the eventual decision.
Guidance on this matter is currently contained in a booklet issued by the Planning Inspectorate entitled, Definitive map orders. The booklet gives advice on the main points to be taken into account by the Secretary of State or inspector. Section 5 states the only points to be considered.
I hope that the Government have considered the matter seriously. The fact that they have not tabled their own amendment suggests that they still consider there are difficulties. Either the original drafting of the booklet issued by the Planning Inspectorate creates difficulties and needs to be redrafted or the Government need to place a provision on the face of the Bill. However, the time wasted and costs involved are obviously unacceptable.
Baroness Farrington of Ribbleton: I hope to be able to reassure the noble Baroness that the first part of Amendment No. 403 is unnecessary. This element would enable a local authority to decline to determine an application by a land manager for an order under
It is necessary for the authority to consider an application which it receives, otherwise it would have no way of judging whether or not it had the power to make an order. However, if the authority were to conclude that the grounds for making an order were not satisfied, it should refuse.
The second element appears to confuse two separate processes: the making of an order and its confirmation. An authority may make an order in good faith but should not, in every case, anticipate what objections or representations, if any, might be made which would affect the decision on whether the order should be confirmed. For example, the tests for confirming an order under Section 119 are different from those for making it.
To that extent it is difficult to see how the amendment would work in practice. However, I hope that in the light of the assurances I have given that the new right to apply for orders does not affect the grounds on which such orders may be made, the noble Baroness, Lady Miller, will feel able to withdraw the amendment.
I accept that authorities may, as the noble Baroness stated, occasionally receive applications which show little understanding of the grounds on which such an order may be made. That can happen with any consent procedure. It should be possible to filter those out through informal discussions with the applicant. If, however, an applicant insists on proceeding and the matter eventually comes to the Secretary of State on appeal, he has the power to award costs if he considers that a person has acted unreasonably.
The Bill already enables an authority to decline to consider applications in certain circumstances. Those are set out in new Section 121C in Schedule 6. They include, for example, an application which is similar to one for which the Secretary of State has refused to make or confirm an order within the previous three years.
I turn to Amendment No. 409. I listened carefully to the views put forward. I recognise the fears of those who believe the amendment would open the floodgates to unreasonable prosecutions; for example, where a farmer had missed the deadline by only a few days. However, we think that that is unlikely. Prosecutions cost money. User groups are constantly telling the Government that they should not have to initiate proceedings when it is the responsibility of the highway authority to do so. For example, it is possible to bring private prosecutions under Section 137A of the 1980 Act which relates to crops on rights of way and which might be regarded as the counterpart to Section 134. However, the Government have not been
We resisted amendments in another place which would have brought ploughing within the ambit of Clause 59 because in legal terms a ploughed footpath is more likely to constitute a nuisance than an obstruction. Moreover, the procedures in Clause 59 are more suited to obstructions which are likely to endure for some time. On the other hand, a ploughed field can become a field with growing crops in a relatively short time.
That rather leaves ploughing out of the equation in terms of public action. I understand the motives behind Amendment No. 409. I am sure that most farmers act responsibly and meet their obligations under Section 134(3) of the Highways Act. However, it is true that the restriction on who may prosecute offences under Section 134 sits oddly with the related provisions in Section 137A, and, indeed, with the general offence of wilfully obstructing a highway under Section 137 of the Highways Act 1980. Moreover, the Bill's provisions relating to temporary diversions do not prevent offences under those provisions being prosecuted privately. I am therefore prepared to consider further the case for amending Section 134, although I can make no commitment at this stage that the Government will table amendments on Report. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
Before speaking to the other amendments in this group, it may help the Committee if I explain that Clause 59 expressly applies to those obstructions whose removal highway authorities have specific powers to secure by notice, and, in the event that the obstruction is not removed, to remove it themselves, sometimes with the need of a court order, recovering their costs from whoever is responsible. I believe that that may answer one of the points raised by the noble Baroness. The types of obstruction involved are fences, gates, piles of machinery and so forth.
The Secretary of State or the National Assembly for Wales may make regulations extending the provisions to other forms of obstruction whose removal a local highway authority has power to secure. Certain kinds of obstruction are excluded from the provisions. Amendment No. 420 would lift that exclusion, bringing them within the ambit of Clause 59. I can assure the noble Baroness, Lady Miller, that the Government thought carefully about these provisions before introducing the Bill.
The main purpose of Clause 59 is to encourage local highway authorities to comply with their general duty under Section 130(3) of the Highways Act 1980 so as to prevent obstruction to their highways as far as possible. Clause 59 enables an individual to intervene in the process whereby a highway authority decides
We believe that obstructions caused by buildings, caravans, tents and the presence of people should not be matters for Clause 59. Public order issues can arise when action is taken to remove obstructions of this nature and a local highway authority is best placed to decide how and when it should act in such cases. For example, cases may arise where its own officers are put at risk.
Amendment No. 420 appears to be a replacement for new Section 130B(4) which sets out the grounds on which the court may make an order against a highway authority, although I note that the amendment does not, in fact, delete Section 130B(4). One effect of the amendment would be to remove the court's discretion to make an order if certain conditions were met. Under the Bill as currently drafted, we would expect the court to make an order if satisfied as to the matters set out in new Section 130(4) and if the statutory defence in new Section 130(5) was not met. However, there may be circumstances in which it might be appropriate for the court not to make an order if, for example, it was clear that the complainant had acted in bad faith. The court should have discretion in such cases.
The amendment would also allow for an order to be made if there was a serious dispute as to whether the way in question was a highway or even if the authority had a well-funded programme for dealing with obstructions, was working its way through it, and had added this latest one to the list.
The purpose of Clause 59 is to catch the poorly performing authorities--those who do not take seriously their responsibilities to keep rights of way open for the public. Shortage of funds would not be an excuse for taking little or no action at all. On the other hand, an authority which showed that it had committed reasonable funding and was implementing a fully prioritised strategy to deal with obstructions on rights of way in its area should be allowed to get on with it.
The noble Baroness is right that Clause 59 would not deal with another van Hoogstraten who built a barn over a right of way. But Clause 60 would. It enables a court, when convicting a person of wilfully obstructing a highway, under Section 137 of the Highways Act, to order the person concerned to remove the obstruction. Section 137 applies to all forms of unlawful obstruction.
We do not believe that this Bill is suitable for dealing with problems referred to by the noble Baroness in relation to caravans, which are best handled through the DETR/Home Office guidance to local authorities.
Finally, we are prepared to consider Amendments Nos. 441A and 538 with a view to bringing forward amendments on Report. However, we would not be able to accept the amendments in their current form because we do not believe it right that a surveying authority which is promoting an order should be entitled to decide whether or not to treat an objection as a bad objection and so avoid further public scrutiny into the merits of an order. Indeed, the amendments seem very widely drawn in that they appear to enable an authority to disregard any representation which it considered was not capable of affecting its decision of whether or not a definitive map modification order was appropriate. It could cover objections which were relevant but to which the surveying authority itself thought no weight should be attached.
If there is to be a filtering process, it should be operated by the Secretary of State or the National Assembly for Wales. It may be possible to avoid the time and expense of a public inquiry if the Secretary of State or the Assembly were entitled to refuse to hold an inquiry or hearing if the only objections or representations were irrelevant. We will look into that further. In the meantime, I hope the noble Baroness will feel able to withdraw her amendment.
I apologise to Members of the Committee for giving such a detailed reply. This is a highly technical area and to have it on the record will I hope, save the House time on Report.
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