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The Lord Bishop of Winchester: My Lords, I associate myself with the amendments of the noble Baroness, Lady Sharp, and the noble Earl, Lord Selborne. I associate myself, too, with their thanks to the Minister for the work that he and his officials have undertaken in tabling the initial amendment. I am enormously impressed by the depth of the noble Earl's researches and his mastery of these matters. The issue

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is of great seriousness to those immediately affected. My concern is for those in an area of Northamptonshire who have been in urgent touch with me as they have with the noble Earl.

It is a matter of very real alarm to the people whom the noble Baroness and noble Earl described. I share the noble Earl's sense that the figure owing to the owners of the common land must be set as low as reasonably possible. I note his remarks on that aspect. I support the amendments and all that has been said. I underline how urgent it is for the amendment to be in place and for it to be tuned as finely as possible.

Baroness Byford: My Lords, I express grateful thanks to the Minister and his team. The problem that has arisen is huge.

I shall not go over the ground that other noble Lords have covered so carefully. Perhaps I may ask one or two questions. I speak to Amendment No. 196H which is grouped with the other amendments. It is a simple amendment compared with the other amendments. It requires that there should be affirmative resolutions by both Houses on this issue.

Have the Government defined any amount of land which would be included? Is it the house and the immediate curtilage of the land or the garden? Alternatively, would it include acres of land? The provision refers to land. I was not sure how extensive they would be.

Secondly, in many cases the problem has arisen because individuals are--rightly--entitled to charge for access over land. A good deal of pressure has been put on parishes and local authorities to apply charges under the best value regime. What is the Minister's guidance to them?

Thirdly, I should like to ask about the regulations. Much of the outcome of our discussions will be built into regulations, which we shall not see before the Bill receives Royal Assent. The Minister has given us an indication of the Government's intentions, but I do not think that the final regulations will be written into the Bill before it passes. Any clarification that the Minister can give us would be very helpful.

Other noble Lords have mentioned the National Trust and the Totteridge Trust, which has written to me. Will an individual be able to become a trust to get round the provisions that my noble friends are trying to protect? That is a slightly obscure question, but it is relevant. The issue is not about existing charitable trusts, but what might happen in future. We ought to put our minds to that.

Again, I thank the Minister and I do not envy him the task of trying to pull this difficult problem together.

7.30 p.m.

Lord Phillips of Sudbury: My Lords, I have added my name to Amendment No. 196H, which would ensure that regulations made under this complex new clause were promulgated under the affirmative resolution procedure, not the negative. I asked one

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member of the Delegated Powers and Deregulation Committee whether it had considered the compensation provisions, which will be reserved to the regulations. He did not think that it had. It is fair to point out that the Committee was subjected to a heavy burden of work on the Bill, with many government amendments being tabled and many aspects relating to delegated legislation that had to be dealt with quickly. If ever any measure warranted the affirmative resolution procedure, those regulations will, in the absence of the compensation arrangements being specified in the Bill.

I support what the noble Earl, Lord Selborne, said so well when speaking to his amendments, some of which were tabled jointly with my noble friend Lady Sharp of Guildford. Amendment No. 196AA would insert into subsection (1)(b) words that would not penalise those who had not acquired a full prescriptive right before the due date. Do the words "to keep in existence" in subsection (1)(b) mean the same as not to have abandoned the easement? I have given notice of some of my questions, but this one only occurred to me during the debate. If those words simply mean that someone who has not abandoned an easement will get a statutory easement, the noble Earl's concern is dealt with. However, if they mean something more proactive, he has a powerful point. The inestimable Gale says that the normal rule for easements is that once they have been obtained by prescription, they can be lost by abandonment only if something radical happens. He says:

    "The true rule would appear to be that mere non-use without more, however long, cannot amount to abandonment".

There are any number of reasons why someone might not use the right of way for many years. For example, they might be ill, or even a recluse. The words "keep in existence" seem more proactive. I hope that the Minister will respond to that.

Finally, I shall speak in favour of Amendment No. 196E. It may be a little exaggerated to suggest that denying proper compensation to those lords of the manor who have suddenly woken up to this wheeze could have implications under the Human Rights Act 1998. I cannot be absolutely sure, but I do not believe that the issues were considered when the Law of Property Act 1925 or the Road Traffic Act 1930 were introduced containing provisions that, many years later, it would be realised had created, by a side wind, a potential for ill-gotten gains by certain unscrupulous lords of the manor.

Earl Peel: I think that the noble Lord is referring to the owner of the common rather than the lord of the manor. The two are separate.

Lord Phillips of Sudbury: I accept the noble Earl's point, although lords of the manor usually are the owners of the common, even if not always. In 1925 and 1930, there was no intention to deprive those in the process of acquiring such prescriptive rights of the rights of way that they had already long enjoyed. Most of those who have those rights will do extremely well

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on the basis of the 2 per cent suggested by the noble Earl, Lord Selborne, and my noble friend Lady Sharp of Guildford.

Lord McIntosh of Haringey: My Lords, I am grateful to all those who have expressed their gratitude for Amendment No. 196. I do so not on behalf of Ministers, but on behalf of officials, lawyers and parliamentary counsel, because they have done the real work. I shall try to deal with each amendment in turn and answer the additional points that have been made.

Amendments Nos. 196A and 196C would insert the word "land". The noble Lord, Lord Phillips, is right that the Bill implies land and buildings, so no amendment is called for.

The noble Baroness, Lady Byford, asked how we defined the land area. It does not really matter very much. What is significant is access to the property. There is no limitation in the clause, but if we had to define it, I imagine that we would define it as the curtilage. That is the normal method.

Baroness Byford: My Lords, my concern was that the entry and perhaps 10, 15 or 25 acres from it might be included. Paying 3 per cent on that would come to a goodly sum. If the relevant area is only half an acre, it is another matter. Perhaps the Minister misunderstood me.

Lord McIntosh of Haringey: My Lords, I understand. The noble Baroness is talking about the land area from the point of view of evaluation, not permission. That will certainly have to be dealt with in the regulations. I imagine that it will be a particularly difficult issue.

Amendments Nos. 196B and 196E would reduce further the compensation payable by the property owner to the land owner. I have suggested that the regulations should provide for 1 per cent per property before 1930 and 3 per cent for later properties. Here, a figure of 2 per cent is suggested. That is lower than the figure which the noble Earl, Lord Selborne, suggested in his amendment in Committee. Our intention is to create a fair balance between the landowner and the property owner. We listened carefully to the points made in Committee and noted the responses to the consultation letter which we issued last month. The result was the tiered system of 3 per cent or 1 per cent, and we believe that that is an appropriate balance.

There is nothing magical about those figures. They are round figures. We are simply responding to the consultation. I do not feel inclined either to put a figure into the Bill or to go against the consultation which we have undertaken.

With regard to Amendment No. 196D, I appreciate the wish to ensure that no property owner is faced with having to pay a large lump sum immediately. In response to the concerns which were expressed, we have already reduced the percentage compensation payments and propose that the regulations will provide for payment by instalments. To that extent, we

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have dealt with the problem that the amendment would address. However, it would appear to be unfair to the owner of the common land to provide for a long delay before any payment was made, which is what the amendment seeks to do. Therefore, I hope that Amendment No. 196D will not be pressed.

Amendments Nos. 196F and 196G appear to have been drafted with the intention of providing safeguards to the owner of the common land and the beneficiaries of charities. I sympathise with the objectives set out in the amendments with regard to charities. However, we believe that regulations would provide a better means by which to safeguard the position. I can assure the noble Baroness, Lady Sharp, that when drafting the regulations we shall consider ways in which we can do that.

I was asked whether individuals can turn themselves into a trust in order to receive special treatment. I am not convinced that the provision allows special treatment for charities, and I am not convinced that that would be worth while. However, if I am wrong, I shall certainly write to the noble Baroness, Lady Byford.

I continue with Amendment No. 196F, which is a substantive amendment. With regard to paragraph (b), I can assure the noble Baroness, Lady Sharp, that it is intended that the statutory rights created under the scheme will be the same as those that would have arisen if the right had been acquired by prescription. I believe that that is the assurance she required.

With regard to paragraph (c), there is nothing in the Bill, nor will there be anything in the regulations, that will prevent the landowner using any compensation for the upkeep of the common. However, it is not our intention to provide for a lump sum compensation payment followed by an annual fee, which would or would not be put towards upkeep as the case may be.

In relation to paragraph (d), I am not convinced that it would be appropriate to give the common landowner the ability to impose conditions on the statutory right over and above those imposed in the regulations. The rights that we intend to give to the access user are those that he would have enjoyed by prescription. I hope that I have covered the points that were raised.

In relation to Amendment No. 196H, which seeks to insert the affirmative resolution procedure, I do not believe that the Delegated Powers and Deregulation Committee has put forward an explicit view that the negative resolution procedure is incorrect. If the committee were to say that the affirmative resolution procedure should be used, we would do so. However, I do not believe that the amendment is appropriate until the committee comes to such a conclusion.

With regard to Amendment No. 196J, I can give the noble Earl, Lord Selborne, the assurance that we fully appreciate the need to act quickly. We intend to bring forward the regulations as soon as we can. However, it is obvious from this debate that the issues are not straightforward, and I do not wish to make any commitments.

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Amendment No. 196AA concerns what the noble Earl calls "modern lost grant" and what the noble Lord, Lord Goodhart, calls "lost modern grant". I prefer to call it "modern grant lost". I consider that to be much more elegiac and poetical. It would go with "paradise lost", and would not make any difference to the sense.

As the noble Earl, Lord Selborne, will have become aware in the course of his research, the law of prescription is very complex. He is right to point out that our amendment will not cover all the circumstances where prescriptive easements would have been obtained if driving had not been made a criminal offence. That will be the case in many instances, but neither would certain cases be covered by his amendment. Many people have paid for easements which otherwise they could have obtained through prescription.

In putting forward this amendment, it was never our intention to do anything more than deal with a specific, acute problem. The problem which the Government seek to resolve concerns cases where a property owner has been driving to his home across common land unhindered and continuously for many years but is now faced with a large payment in obtaining the legal right to do so. That was the problem with which we were faced and which we have stuck to. If we widen the scope of the amendment, we run the risk of opening up many more access ways across common land that have not been used for many years. Behind that must be our desire to stop people driving across common land unless they have to. The amendments concern occasions when people must do so.

Amendment No. 196FA deals with the desire of the noble Earl, Lord Selborne, to ensure that the government scheme takes special account of properties where vehicular access may have been in existence for many years. We accept that there is a case for a reduced compensation payment, and that is what we propose to put into the regulations. It represents a great deal less than the 9 per cent which some owners can currently expect to be asked to pay.

It is now suggested that we should go even further and provide free easements for houses constructed before 1st January 1906 because such properties had been in existence 20 years before it became an offence to drive on common land and therefore a prescriptive right must have been acquired. I am not sure about that. I do not believe that many people living in properties next to common land in 1906 would have had cars. I believe that they would have used hand carts.

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