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Baroness Byford: I thank the Minister for making his contribution so early. I am sure that my noble friend Lord Selborne will be grateful for it. We are grateful to the Government for coming forward with their own proposals and for giving us a chance to think about them. We are due to reflect our thoughts back to them on 16th October. I do not wish to delay any more, except to say that I fully understand why my noble friend raised the issue and am grateful to him for having done so. Even a maximum of 4 per cent will be an unwelcome surprise for some. Quite a few elderly retired people live in such houses and many could have difficulties with such a sum, particularly if they bought their property cheaply or if it has been passed down the family and is now valuable. I do not wish to prolong the debate. We are happy to reflect on the issue and come back.

Earl Peel: I have a question for the Minister that goes to the root of the problem. I have a great deal of sympathy with the noble Earl's arguments. There is clearly a problem. As I understand it, the Road Traffic Act 1930 specifically refers to common land to ensure that there is no doubt that it is not included. Is it sensible, justifiable or, indeed, legal to differentiate common land from non-common land? Common land is privately owned, albeit subject to certain rights such as grazing rights and estovers. An owner of common land should be afforded the same rights as an owner of

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non-common land when entering into negotiations with anybody who wishes to acquire an easement over the land. I am concerned that we are suddenly creating a differential treatment in law between common and non-common land. It is very important that the Minister answers that question.

Lord McIntosh of Haringey: All that I can say is, "good try". Of course there is a difference. We recognise the difference in law between common and non-common land. We are considering whether the amendment that we table on Report should extend to other land on which driving is prohibited. Our proposals will certainly not assume that there is no difference in law between the two, because there is.

Baroness Carnegy of Lour: I have not had the benefit of receiving a copy of what the Government have sent to some noble Lords. That is inevitable, because the Government were not to know that I was interested, but I have been taking an interest in the issue for some time. Will the Government's proposals be retrospective? We would not be pleased if they were.

My other point is that I have received letters from Mr Michael Farrow, the freeholder of Newton Common in Hampshire, of which noble Lords will have heard, and also from the chief legal adviser of the Country Landowners' Association. I have received those two communications as well as one from the noble Lord. They both raise in considerable detail the question of the human rights, under the human rights convention, of the owners of common land, whether they be local authorities or private individuals. Are the Government paying attention to that in their proposals?

I am delighted that they are trying to solve that problem. That is excellent because people are being placed in an awful position. What has happened to householders is monstrous. However, the problem, as set out by the two lawyers to whom I have referred, is that it is not only house owners whose human rights are threatened but also the owners of common land. Obviously, if the House is to legislate intra vires, it must consider both.

9.15 p.m.

Lord McIntosh of Haringey: I have seen the document, to which the noble Baroness, Lady Carnegy, refers, from the lawyer to one of the owners of common land who is concerned with this matter. Perhaps I may assure her that we are fully aware of the issues relating to the European Convention on Human Rights and we shall have due regard to that. As to whether we are legislating retrospectively, we are talking about charges that will be levied in the future. The cut-off date for those charges is a matter for the detail of the amendment which we put forward.

Perhaps I may return to the point raised by the noble Earl, Lord Peel. He asked me whether it was right to differentiate common land from other land. As I believe I said, the difference is between land on which

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it is a criminal offence to drive and that on which it is not. There is some land--but only some--other than common land on which it is a criminal offence to drive.

Owners of common land are of course free to negotiate under the Government's proposals where they have not enjoyed access for over 20 years. That is at least in common with other land.

Baroness Sharp of Guildford: My name is attached to this amendment and I should like the opportunity to say a few words about it. I very much agree with what the noble Earl, Lord Selborne, said. He mentioned the problems with Surrey County Council. That council has changed its stance on this particular issue. Having originally granted easement at a peppercorn rent, it was then reminded by someone that it should be looking to secure best value for its assets. Since then, the council has sought to gain rather more for the right of easement.

There is also a very real problem that different jurisdictions within Surrey County Council have different policies. Guildford Borough Council and Waverley Borough Council have granted easements at a zero cost. Abinger Parish Council has a problem in that it owns the common land through a charitable trust, and it has been advised by the Charity Commission that it should do the same as Surrey County Council; namely, that, if possible, it should secure best value for its assets.

Therefore, a real problem exists in relation to differentiation between different authorities and the inequities that arise as a result. There is also the problem that has arisen with Newtown, where private landlords have discovered that they have rights for which they can secure some profit.

From these Benches, I thank the Government for the proposals that they have put forward. I believe that they are extremely constructive. Some problems arise as they stand in relation to the issue of those who have had, so to speak, long-standing rights of way. That can still create inequities. I believe that we should look at the proposals in more detail and return to the issue. However, for the moment, I thank the Minister for his proposals.

The Earl of Selborne: I am grateful to the Minister for his words of encouragement. I am sorry that getting in early did not totally curtail the debate. However, I am delighted about that because it demonstrated that there is a feeling on all sides of the Chamber that this matter needs to be addressed.

Although I have thanked the Minister, he will perhaps not be surprised to hear that I am not entirely persuaded that what he is recommending meets the sense of injustice which I believe the Committee feels. It comes back to the point to which my noble friend Lord Peel, I believe inadvertently, referred. He wanted to ensure equal treatment for owners of common and other land. That is exactly what I should dearly like to achieve. However, owners of common land are in the pound seats. They can never have prescriptive rights on their land unless those rights can be proved to go

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back to 1910; that is, 20 years before the introduction of the road traffic Acts. In other words, any landowner who, only by going back to 1910, can say that prescriptive rights can be established is in an extraordinarily privileged situation.

I am sure that it was not intended but the introduction of the road traffic Acts in 1930 meant that thereafter, you could not get prescriptive rights and if an owner did not bother to give an entitlement, as he should have done, or the householder did not identify who the owner was and could not do so, then for the rest of eternity, as the law stands at present, he can never have a right to access his own house. That is because at any moment, an owner might suddenly appear out of the woodwork, as has happened at Newton Common, and send in a bill.

I am certainly not happy about the charge of 4 per cent which people must pay. I know that the Minister suggested that that should be the upper limit but I believe that will be used as a guideline by the Lands Tribunal and others. Quite frankly, I believe that anyone who does not send in a bill for 70 years is remarkably lucky to obtain even a fraction of that sum. That is why I suggested that zero would be an appropriate figure for anyone whose house pre-dated 1930. Therefore, I shall certainly bring forward a different proposal on Report.

However, for the moment, I thank the Minister for his positive response and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 62 [Making of traffic regulation orders for purposes of conserving natural beauty, etc]:

Lord Whitty moved Amendment No. 443:

    Page 40, line 31, after third ("road,") insert ("a GLA road,").

The noble Lord said: My Lords, this is a technical amendment relating to Clause 62 which, among other things, introduces new powers for traffic authorities to make orders controlling vehicular traffic over minor byways for landscape and nature conservation purposes. Because there is no statutory definition of such byways, the Bill lists the types of highway to which the new powers will not apply; for example trunk roads and classified roads. However, the list is incomplete in that it does not presently include the major roads in London for which the Greater London Authority is now responsible. Amendment No. 443 would correct this omission by adding GLA roads to the list. I beg to move.

On Question, amendment agreed to.

Clause 62, as amended, agreed to.

[Amendment No. 443A not moved.]

Clause 63 [Prohibition on driving mechanically propelled vehicles elsewhere than on roads]:

[Amendment No. 44 had been withdrawn from the Marshalled List.]

Clause 63 agreed to.

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Schedule 7 [Driving of mechanically propelled vehicles elsewhere than on roads]:

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