COUNTRYSIDE AND RIGHTS OF WAY BILL
Second Supplementary Memorandum from the
Department of the Environment, Transport and the Regions
1. The Countryside and Rights of Way Bill was brought
from the House of Commons on 16 June 2000. The Department submitted
its memorandum on the delegated legislative powers under the Bill
to the Committee on 26 June. The Committee reported on 4 July
in its 24th Report. On 10 July the Government submitted a supplementary
memorandum in respect of one additional delegated power proposed
for Part I of the Bill by means of an amendment tabled on 10 July
for consideration by the House of Lords at Committee Stage.
2. This second supplementary memorandum deals with
modifications proposed by the Government to the remainder of the
Bill. It identifies new delegated powers as well as amendments
to those already identified and explained to the Select Committee
in the original memorandum of 26 June. Working drafts of these
amendments are annexed to this memorandum [not printed].
The amendments are intended to be tabled shortly.
PART II: PUBLIC RIGHTS OF WAY AND ROAD TRAFFIC
Schedule 5: Definitive maps and statements and
Amendments of Part III of the Wildlife and Countryside
PARAGRAPH 2: REGISTER OF APPLICATIONS UNDER SECTION
3. Paragraph 71 of the 26 June memorandum describes
the regulation making powers in the new section 53B(3) and (4)
inserted into the WCA 1981 by paragraph 2 of Schedule 5 to the
Bill. Section 53B(1) provides that every surveying authority must
keep a register of applications made under section 53(5) of the
WCA 1981 for orders modifying a definitive map. It is proposed
to amend section 53B(4)(b) so as to clarify what consists of a
final disposal of an application. The meaning is extended to include
cases where an order is submitted other than on an appeal to the
Secretary of State for confirmation.
4. Paragraph 75 of the 26 June memorandum describes
two new subsections inserted into section 57 (supplementary provisions
as to definitive maps and statements) of the Wildlife and Countryside
Act 1981 (WCA 1981) by paragraph 7 of Schedule 5 to the Bill:
section 57(6A) and (6B). The amendments proposed for Committee
Stage will insert a further subsection dealing with documentation:
(6C). The new section 57(6C) is a power enabling the Secretary
of State and the National Assembly for Wales (NAW) to prescribe
by regulations documents that surveying authorities must make
available for inspection and the time, manner and place in which
this obligation is to be met and for prescribing where one surveying
authority should provide documents to another. Section 57(5),
(6) and (6A) already address inspection and retention of definitive
maps and statements and orders made under Part III of the WCA
1981 and some other documents.
CLAUSE 48:POWER TO AMEND EXISTING LEGISLATION
5. This power is described in paragraphs 56 to 58
of the 26 June memorandum. The amendments to clause 48 insert
a new subsection (3A) into clause 48. It is proposed that the
NAW will have powers, analogous to those of the Secretary of State
under clause 48, to amend or apply with or without modification
any "relevant Welsh provision" as a consequence of the
creation of the new category of highway - the restricted byway.
A "relevant Welsh provision" is defined as a provision
contained in a local or private Act passed before or in the same
Session as the Bill and relating only to areas in Wales or in
any subordinate legislation which was made before the passing
of the Bill and which the National Assembly for Wales has power
to amend or revoke. The NAW is also to be given a power - again
analogous to that for the Secretary of State as respects England
- to make consequential amendments that arise out of clauses 46
to 48 or out of regulations made under clause 48(3A).
6. The amendments also insert a new subsection (2A)
which relates to the exercise by the Secretary of State of the
regulation making power in clause 48(1) in relation to Wales.
The Secretary of State may not make any regulations under clause
48(1) that have effect in relation to Wales unless he has first
consulted the NAW. He may not make any provision which amends
or revokes subordinate legislation of the Assembly without its
consent, except where the amendment or repeal of an Act itself
has the effect of amending or revoking Welsh subordinate legislation.
7. The new subsection (2B) enables the NAW to submit
to the Secretary of State proposals for the exercise of the regulation
making power in clause 48(1).
8. The requirement for regulations under clause 48
to be subject to the affirmative resolution procedure applies
only to the Secretary of State and not the NAW. Where the Secretary
of State makes regulations under clause 48(1) that require consultation
with the NAW made under clause 48(2A)(2), he must lay before both
Houses of Parliament details of the consultation and of any representations
received from the NAW.
Schedule 6: Amendments relating to creation, stopping
up and diversion of highways
PARAGRAPH 4: STOPPING UP OF FOOTPATHS AND BRIDLEWAYS
FOR PURPOSE OF CRIME PREVENTION, ETC.
9. In paragraph 79 of the 26 June memorandum the
Government indicated its intention to introduce the necessary
amendment so that designation orders under the new section 118B(1)(a)
of the Highways Act 1980 (HA 1980) would be subject to the negative
resolution procedure. The final amendment in respect of Schedule
6 achieves this.
PARAGRAPH 5: PUBLIC PATH DIVERSION ORDERS
10. Paragraph 5 of Schedule 5 is affected by the
amendments. Paragraph 5 amends section 119 of the HA 1980 (diversion
of footpaths and bridleways). Section 119(1)(b) is amended such
that the date upon which the extinguishment of a public right
of way over a footpath or bridleway takes effect is either as
specified in the 'public path diversion order' or as determined
in accordance with section 119(3). In the latter case, it is proposed
to amend section 119(3) such that the extinguishment of the public
right of way is not to come into force until the local highway
authority for the new footpath or bridleway certify that the work
to make it up has been carried out.
PARAGRAPH 7: DIVERSION OF FOOTPATHS AND BRIDLEWAYS
FOR PURPOSES OF CRIME PREVENTION, ETC.
11. The amendments also contain, as regards 'special
diversion orders', changes which have an analogous effect on the
entry into force of any extinguishment of a public right of way
over any 'relevant highway' as described immediately above for
public path diversion orders. The provision affected here is the
new section 119B(4) and (8). Similarly, the amendments proposed
have an analogous effect for 'SSSI diversion orders' the subject
of the new section 119D, of which section 119D(3)(b) and (6) are
the provisions affected.
CLAUSE 59: DUTY TO PREVENT OBSTRUCTIONS
12. Paragraph 66 of the 26 June memorandum explained
that under the new section 130A(3)(b) the Secretary of State and
the NAW may prescribe certain descriptions of obstruction in respect
of which a notice may be served on a highway authority requesting
its removal. This power is circumscribed by new section 130A(4).
An amendment to clause 59 recasts section 130A(4)(a) by expanding
the description of buildings and other structures that are excluded
from the ambit of the section and hence from the reach of the
power in section 130A(3)(b).
13. Two of the new amendments to clause 59 replace
provisions of the new section 130B which include a requirement
under section 130B(1)(a) to serve notice of intention to take
proceedings for the removal of an obstruction. Subsection (1)
of the new section 130C reproduces that requirement to serve notice
and subsection (2) makes provision for regulations relating to
the form of, and information to be contained in, the notice. This
corresponds to section 130A(7) mentioned in paragraph 66 of the
26 June memorandum, which applies to notices under the new section
14. It is proposed to amend the new section 130B
of the HA 1980 by inserting subsection (6A). Where an order is
made under the new section 130B for the removal of an obstruction,
the highway authority against whom the order is made is required
by the new subsection (6A) to cause notice of the order and the
right to appeal against it to be displayed on the highway. Subsection
(6A) includes power for the Secretary of State and the NAW to
prescribe by regulations the places at which and manner in which
notice is to be displayed, and the form of such notice and the
information it shall contain.
15. As explained in paragraphs 50 and 51 of the 26
June memorandum, these regulations will be made by statutory instrument
and as respects the Secretary of State, be subject to the negative
resolution procedure. As the scope of this power is clear on the
face of the Bill and it is being taken for administrative purposes,
the negative resolution procedure is considered appropriate.
16. Clause 62(1) of the Bill inserts section 22(1)(a)(viii)
into the Road Traffic Regulation Act 1984. This has the effect
that a traffic regulation order (which when made by the Secretary
of State is made by statutory instrument) made under s.1 of that
Act may, as respects roads in, or forming part of, or adjacent
or contiguous with a Site of Special Scientific Interest, be made
for the purpose of enhancing the natural beauty of that area.
This in turn shall be construed as including a reference to conserving
its flora, fauna and geological and physiographical features (see
the new section 22(5) inserted by clause 62(3)).
17. Clause 62(4) of the Bill inserts the new section
22A in the Road Traffic Regulation Act 1984. Section 22A applies,
inter alia, to roads other than those to which section 22 applies.
Its effect is that a traffic regulation order under section 1
of the Act in connection with vehicular traffic may be made for
the purpose of conserving or enhancing the natural beauty of the
area, which in turn shall be construed as including a reference
to conserving its flora, fauna and geological and physiographical
features. It is proposed to table an amendment making it clear
that the new section 22A does not apply to a "GLA road".
PART III: NATURE CONSERVATION AND WILDLIFE PROTECTION
18. The amendments introduce a new schedule into
the Bill - Schedule 9A (transitional matters). Paragraph 10 of
Schedule 9A to the Bill enables the Nature Conservancy Council
to serve a 'stop notice' on the owner or occupier of a Site of
Special Scientific Interest who was, before the relevant provisions
in the Bill come into force, permitted to carry out works as a
result of giving four months' notice to do those works (see the
current section 28(6)(c) of the Wildlife and Countryside Act 1981).
19. Paragraph 11(2) of Schedule 9A to the Bill applies
the regulation making power in section 28D(6) and (7) of the 1981
Act to appeals by a person who has been given a stop notice under
paragraph 10(3). The new section 28D(6) and (7) was described
in paragraph 109 of the 26 June memorandum.
PART IIIA: AREAS OF OUTSTANDING NATURAL BEAUTY
20. Part IIIA amends the law relating to areas of
outstanding natural beauty (AONBs). Section 87 of the National
Parks and Access to the Countryside Act 1949 (which provides for
the designation of AONBs) and section 88 of that Act are re-enacted
as part of the new Part IIIA.
Clause (Establishment of conservation boards)
21. Clause (Establishment of conservation boards)
enables the Secretary of State in relation to an AONB in England
and the NAW in relation to an AONB in Wales to:
(a) establish by order a conservation board for
the AONB (subsection (1)). Such an order may provide for the transfer
to the board of local authority functions (subsection (3)(a)).
Alternatively the order can provide that local authority functions
are to be exercised concurrently by the local authority and the
conservation board (subsection (3)(b)). The power to transfer
local authority functions or provide for concurrent exercise can
only be utilised if the Secretary of State or the NAW (as the
case may be) considers it expedient to do so for the purposes
specified in subsection (1) of clause (General purposes and
powers): namely, to conserve and enhance the natural beauty
of the AONB or to increase the public's understanding and enjoyment
of the AONB (subsection (3)); and
(b) make further provision relating to the constitution
and administration of conservation boards (subsection (4)). Such
provisions will supplement and complement Schedule (Areas of
outstanding natural beauty: conservation boards) (also introduced
by this amendment - subsection (2)). Schedule (Areas of outstanding
natural beauty: conservation boards) contains provisions concerning
the appointment of local authority members to conservation boards
(paragraph 4 stipulates that any order must specify one of two
methods for the appointment of local authority members) and concerning
the appointment of members by the Secretary of State or the NAW
(including the appointment of Parish members in England), consultation
regarding appointments, the election of chairs and deputy chairs
and audit. Subsection (4)(a) to (i) details the particular matters
of constitution and administration to which an order under subsection
(1) may relate. These include appointment, removal, conduct of
members, records and documents, and complaints of maladministration.
It is expected that regulations will be made in relation to all
the matters set out in subsection (4).
Clauses (General purposes and powers) and (Orders
establishing conservation boards)
22. An order establishing a conservation board can
also include provisions in relation to the supplemental and incidental
powers of the conservation board to which it relates or the limits
on those powers, including provision relating to the borrowing
of money (subsection (7)(a) of clause (General purposes and
powers)). Further, an order establishing a conservation board
may provide for any enactment which relates to or limits the supplemental
or incidental powers or duties of local authorities or relates
to the conduct of, or transactions by, local authorities to apply
in relation to the conservation board with such modifications
as may be specified in the order.
23. An order establishing a conservation board can
include any incidental, supplementary, consequential or transitional
provisions that are necessary or expedient (subsection (5) of
clause (Orders establishing conservation boards)). This
includes the application, extension, exclusion modification, repeal
and revocation of any enactment or any instrument made under any
enactment (subsection (6) of clause (Orders establishing conservation
boards)). It is envisaged that such matters as borrowing,
contracting out and the retention of documentation may be addressed
in this way.
24. The incidental (&c.) power granted by subsections
(5) and (6) is specifically expressed to extend to the transfer
of property, rights and liabilities from one person to another
(subsection (7) of clause (Orders establishing conservation
boards)). The intention is to use this power in respect of
such matters as the transfer of real property and obligations
to maintain rights of way.
25. An order establishing a conservation board or
making transitional provisions following the variation of an AONB,
and which (i) provides for the transfer of any property, rights
or liabilities or (ii) makes transitional provisions in connection
with such transfer or with any order by which functions become
or cease to become exercisable by any conservation board may in
particular deal with the matters set out in subsection (8) of
clause (Orders establishing conservation boards). These
include the management and custody of any transferred property
and the transfer of liabilities arising under any enactment.
26. An order establishing a conservation board or
making transitional provisions following the variation of an AONB
may make different provision for different cases, including different
provision for different areas or localities and for different
boards (subsection (9) of clause (Orders establishing conservation
27. Before making an order establishing a conservation
board in England the Secretary of State must consult the Countryside
Agency and every local authority other than a parish council whose
area consists of or includes part of the AONB in question. Similarly
the NAW must consult the Countryside Council for Wales and every
local authority whose area consists of or includes the whole or
part of the AONB (subsections (5) and (6) respectively of clause
(Establishment of conservation boards)).
28. Where an order establishing a conservation board
revokes a previous order establishing a conservation board, this
may occur only after consultation with the conservation board
to which it relates as well as the consultation described in paragraph
21. Such an order can include provision for the winding up of
the board (subsection (7) of clause (Establishment of conservation
29. An order by the Secretary of State or the NAW
establishing a conservation board is made by statutory instrument
(subsection (1) of clause (Orders establishing conservation
boards)) and when made by the Secretary of State, is subject
to the affirmative resolution procedure (subsection (2)). The
Government believes that it is necessary to have wide powers to
make secondary legislation in relation to conservation boards
since a great deal of flexibility is needed when creating them.
This is because the powers and duties of each board will vary
depending on the location and nature of the AONB for which the
board is responsible. Recognising that the order-making power
is wide, the Government believes that the affirmative resolution
procedure is appropriate, as it will allow for proper Parliamentary
scrutiny of such orders.
Transitional provisions when the area of an area
of outstanding natural beauty is varied
30. Subsection (9) of clause (Establishment of
conservation boards) enables the Secretary of State in relation
to an AONB in England and the NAW in relation to an AONB in Wales
to make transitional provisions by order when the area of an AONB
is varied. This allows provisions to be put in place in relation
to functions over land which becomes or ceases to be part of the
area of the AONB. This power is exercisable by statutory instrument
(subsection (1) of clause (Orders establishing conservation
boards)). This order making power is subject to the negative
resolution procedure (subsection (3) of clause (Orders establishing
conservation boards)). This level of Parliamentary scrutiny
seems to the Government to be appropriate since it is not a power
to alter the substantive functions of conservation boards but
merely makes it possible for the functions to relate to the newly
varied area of the AONB.
PART IV: MISCELLANEOUS AND SUPPLEMENTARY
CLAUSE 77: COMMENCEMENT
31. Previously the Bill provided in clause 77(3)
that the Secretary of State was empowered to commence Part II
of the Bill on an appointed day by order made by statutory instrument.
Clause 77(3) has been deleted so that Part II now comes into force
in accordance with clause 77(4). This means that Part II will
be brought into force by an order made by the Secretary of State
as respects England and the NAW as respects Wales. However, it
is proposed that clauses 54, 55 and 60 to 63 (and Schedule 7)
should commence at the end of the period of two months beginning
with the day on which the Act is passed. Accordingly, they will
be added to those sections appearing in the list at clause 77(2).
18 July 2000