Deregulation Bill

Baroness Byford Excerpts

Tuesday 3rd February 2015 Lords Chamber

Moved by

[Baroness Byford]

7: After Clause 23, insert the following new Clause—
“Applications for public path extinguishment of diversion orders: review
(1) Within two years of the coming into force of the rights of way provisions in this Act, the Secretary of State shall lay before both Houses of Parliament a report containing an assessment by Natural England’s Stakeholder Working Group on Unrecorded Rights of Way of how effective the right to apply provisions and the accompanying guidance have proved in getting local authorities to respond positively to applications for public path extinguishment or diversion orders.
(2) As well as looking at the overall effectiveness of the legislation and the accompanying guidance, the report shall include an assessment of any notable disparities between the various local authorities.”

[Baroness Byford (Con)]

My Lords, I should remind noble Lords of my farming interests, that I am a member of the CLA, and of the other interests that are set out in the register. Clauses 20 to 27 cover the “Use of land” where, thanks to the excellent work of the stakeholder working group on unrecorded rights of way established by Natural England, improvements have been made to the legislation before us. However, there are still some outstanding areas of concern. Amendment 7, which is supported by my noble friend Lord Skelmersdale, proposes that there should be a review within two years of:

“Applications for public path extinguishment of diversion orders”.

I moved an amendment in Committee that such a review should be carried out within one year, but on reflection I do not believe that that would have allowed adequate time to assess whether the proposed changes in the Bill had been successful or not. In Committee I was very grateful for the contributions made from around the Chamber by the noble Lords, Lord Rooker and Lord Cameron of Dillington, and the noble Earl, Lord Lytton, and by my noble friends Lord Cathcart and Lord Plumb, to name just a few. We debated the whole question of wider access for the public to farmland and, in some cases, through people’s gardens and close to their houses. I accept that philosophical differences were reflected in those contributions, but I have to tell noble Lords that for those families who are affected by such intrusions, this has proved to be distressing, to say the least.

I am grateful to the Minister, my noble friend Lord De Mauley, for arranging a meeting at Defra for myself and my noble friend Lord Skelmersdale at which we were able to debate this issue further. However, I understand that following a recent meeting of the stakeholder working group, the CLA has raised three further issues with the Minister to which it has not received a response. Is he in a position to clarify these matters as they reinforce my belief that an earlier review is needed? Perhaps I may quote the association:

“CLA remain concerned that the ‘right to apply’ does not provide a presumption that paths will be diverted away from gardens, houses and business, nor does the right to apply ensure a different outcome for the landowner.

“The legislation does not provide a means by which a farmer, for example, who wishes to put a gate on his drive to make his farm less susceptible to theft, or wants to put bollards to prevent illegal vehicles, can do this. He cannot apply to the authority for such a structure, and the authority, even if it is sympathetic would have to be extremely creative with current legislation, to satisfy such a request. Structures can only be requested if required for the control of livestock. The SWG recommendation that a clause be inserted allowing authorities to consider structures in a wide variety of circumstances was a pragmatic, deregulatory solution to a currently very regulated and constricted practice.

“There is also the issue of right to access in extremely intrusive areas such as through private gardens and yards based on memory of a path rather than hard evidence. It can only be right that any access or right of way should have to be based upon objective evidence rather than subjective opinion and memory. This is especially important given that there is no time limit within which claims can be made—thus claims can be made about very detailed routes which people claim to have walked 30, 40, 50 years ago.

“The Deregulation Bill presents an opportunity to ensure clear guidance for users, landowners and local authorities in what can be the very emotive issue of rights of way”.

In Committee, my noble friend Lord De Mauley quoted figures from research undertaken by the Ramblers which recorded that of the 1,200 diversion orders applied for, some 94% were granted without any objections, which is good. Of the remaining 6%, only 1% were not confirmed by the Secretary of State. But some of those were affected, and I have received evidence citing many examples from different counties around the country where great distress has resulted. In one case, an owner was subjected to an onslaught by the council, and it was feared that all that worry was one of the contributing factors to his later suicide. When speaking to his own amendment in Committee, my noble friend Lord Skelmersdale said that:

“The stress and the financial hardship involved in employing specialist lawyers, only to learn that one has virtually no legal rights, have led to illness, mental breakdowns and at least two suicides”.—[Official Report, 28/10/14; col. GC401.]

Noble Lords may be wondering why I am quoting these remarks. It is to reinforce my view that we need to bring the review forward, particularly if we are not going to see further changes to the Bill to address the three outstanding issues. Given that, waiting three years for a review is three years too long, but if the Government did not like my suggestion of one year, I hope that the halfway house of two years might be considered.

This is an important debate and again I thank the Minister for his courtesy in talking about these issues through the amendments we tabled in Committee. I beg to move.

--- Later in debate ---

[Lord De Mauley]

My noble friend makes a fair point.

It has been clear throughout the Bill’s passage that Parliament agrees with our view that that the consensus should be supported by keeping the rights of way package as it stands. I spoke to the stakeholder working group at its latest meeting and learnt at first hand that its overriding aim is to get the package implemented intact. We are determined that the consensus should not be put at risk by adding measures that have not been discussed with stakeholders and, of course, not consulted on.

Amendment 7, tabled by my noble friend Lady Byford, is intended to ensure that the Government review the success or otherwise of these measures after their implementation. That is an absolutely laudable aim and one that, in any event, would be a matter of good practice. However, although we agree with the aim of evaluating the effectiveness of the right to apply and associated guidance, I hope that my noble friend will agree that it would not be appropriate to use a deregulatory Bill to impose on the Government the statutory burden of making a formal report. That would run contrary to the aims of the Bill.

In the other place, the Government have already put on record that the stakeholder working group’s advice will be sought on the constitution of a review panel to advise on how well the reforms are working and whether any further measures need to be taken before the cut-off date. I am happy to put on record now that we will ensure that any arrangements to review the rights of way reforms will include an assessment, within two years of implementation of the reforms package, of how effective the right to apply provisions and the accompanying guidance have proved in getting local authorities to respond positively to applications for public path extinguishment or diversion orders.

The proposed assessment will include an opportunity for people to provide evidence to the stakeholder working group either through wider consultation outside the group or a call for evidence. The assessment will send a message to authorities that the Government are determined that the new policy should work and that if guidance does not bring about sufficient change, we will consider introducing further measures.

My noble friend Lady Byford returned to the issue that we discussed in Committee about the authorisation of gates. We recognise that an amendment to extend the powers to authorise gates and similar structures could be helpful to people with a right of way going through their premises or garden. The stakeholder working group discussed this at some length. While there was agreement about the proposal in principle, the group has not yet arrived at a formulation on which it could agree. Those measures have not, unlike the rest of the package, been widely consulted on and are therefore not necessarily agreed by wider stakeholders, whose views we also have to consider.

Concerns have been expressed by users of rights of way about the possible proliferation of gates and other structures across rights of way. Particular concern has been raised with me by equestrian groups in the stakeholder working group that I attended. They are worried about riders with disabilities who may not be able to dismount or who have difficulties in opening and closing gates without risk of injury to themselves or their horse. Since the House of Lords Committee stage of the Bill I have received correspondence expressing concern about the suggestion that the powers of local authorities to authorise gates should be further extended beyond those changes already being introduced by Clause 24.

My noble friend also raised the point about the right to apply not providing a presumption that paths will be diverted away from gardens, houses and businesses. We have covered that quite extensively. The guidance agreed by the stakeholder working group introduces a presumption that paths will be diverted away from houses and businesses. We believe that the guidance, combined with the right to apply, will have the desired effect. My noble friend also asked whether there should not be a time limit on making claims based on long use. The stakeholder working group has not been able to reach an agreement on that, but it will continue to keep it under review.

On that basis, I hope that my noble friend will withdraw her amendment.

[Baroness Byford]

My Lords, although I am grateful to my noble friend for his full response to my Amendment 7 and for his acceptance that the review should take place two years after the Bill becomes enacted rather than after three years, as was originally proposed, I will read Hansard carefully—but this is indeed welcome.

I still have some concerns about the important ongoing work by the stakeholder working group. We get such few opportunities of such legislation coming before us in Parliament, when we have a chance to try to make sure that practicalities are overcome if they possibly can be—although that is not always possible. I hope that the stakeholder working group will continue to work closely together to try to resolve some of these issues. They are not impossible to resolve. My noble friend Lord Cathcart said that it is costly to apply for diversions. I gather that unopposed diversions cost about £2,000, but those that are opposed cost more than £8,000 and can be dearer. We need to keep that in the back of our minds when we are talking in fairly general terms about something that was a problem 40 years ago, to which my noble friend Lord Spicer referred.

Although there are improvements in this Bill, which I have publicly acknowledged, there are still things that need addressing. If that cannot be done within the Bill, I hope that the words that my noble friend the Minister has given me today will fill me with confidence rather than suggesting that he thinks that I have got it wrong.

We have another stage. Other Peers have taken part in this short debate: my noble friends Lord Skelmersdale, Lord Cathcart and Lord Spicer, as well as the noble Lord, Lord Grantchester. The noble Lord has, as I do, footpaths across his land and we are happy to have them. Ours are not contentious, but there are people—and 1% is 1% too many—who are having a rough time, because the various interested bodies cannot get together to try to reach a proper outcome to something that I hope is not an insurmountable problem. It may seem a huge problem to those who want the right of way; and those who say that if they were to divert it, that would be of benefit to everybody. Perhaps the working group could attach a little more vigour to some of the outstanding issues.

I thank my noble friend and other noble Lords who have taken part in this debate, and, with my noble friend’s words saying that within two years there will be a review panel rather than a report, I beg leave to withdraw the amendment.

Amendment 7 withdrawn

--- Later in debate ---

[Lord Judd (Lab)]

My Lords, I very strongly support Amendment 17. I thank the noble Lord, Lord Bradshaw, for putting it forward. It is constructive, public-spirited, responsible and sensible—just like the old Bradshaw’s timetables.

There is one caveat I want to make. There is an issue that we all have to face. Those of us who are able to enjoy remote and attractive areas must remember that there are very many people for whom this is not a practical possibility because of their physical condition. We all need to get our minds round the issue of how we can improve access for such people so that they are able to share in something that we all regard as precious. Of course, that has to be done by consultation and, if necessary, appropriate legislation and regulations, but it should be done in a sensible way, with the full co-operation and backing of the authorities that are responsible for a particular piece of land.

Having said that, the noble Lord put it in very moderate language but what he revealed is actually a nightmare. At times it can be described only as vandalism—if it were to happen in an urban area, there would be an outcry—despoiling and ruining decent, attractive countryside and making a hell for some people who are trying to enjoy that countryside in a quiet and peaceful way. In fact it can be quite a frightening experience for those who may be able—I count myself among those now—to just about make those areas, but who may have certain disabilities and so on which make them feel vulnerable. That is not least the case for those with loss of hearing, for whom the sudden noise and disturbance of these vehicles can be an unpleasant experience.

The issue is mainly about what is being done to places of special significance, scenically and in other ways. It is also about this “couldn’t care less” attitude—that it is left to somebody else to deal with and clear up, which is utterly selfish as well as being vandalism. We should all recognise that, and wish godspeed to the noble Lord’s amendment, because it is vital. I should of course declare an interest as patron and former president of Friends of the Lake District, and as vice-president of the Campaign for National Parks, but I assure you that the remarks I have made this evening come from the heart in terms of being a resident of one of the areas that has quite a number of beautiful things that can so easily be ruined and destroyed.

[Baroness Byford (Con)]

My Lords, I will add a few words on this amendment, because it is at the very heart of enjoyment of the countryside, and the contributions we have heard from around the Chamber tonight rather reflect the challenges that we place on our countryside. From the perspective of disability access, which my noble friend mentioned, it is hugely important that people who are not able to walk freely, or cannot get around in the way they used to be able to, have access to the countryside. But due to the sort of damage to the green lanes that my noble friend Lord Bradshaw was talking about, they would not be able to get through those anyway. In many cases the countryside is being ruined as the green lanes have become bogs, and the people that do it have very little regard for the enjoyment and pleasure of anybody else.

There are also landowners who are quite willing to open up areas of their own land and make it available to those who wish to follow the sport of 4x4s, who get a thrill from that sort of activity where it is well organised. But it is the result of the devastation that is caused to some of our most beautiful areas that we are trying to address within this amendment. I had not looked to speak in this debate, but I am moved to do so because if we are going to have another working group looking at it, there are clear aspects that need to be taken into account. It is not just a question of saying to people who enjoy the sport of 4x4s, “You can’t do it”, but that they can and that there should be areas in which they can do it; nor saying to people who are disabled who need to have motorised access to the countryside, “You can’t get through because we are going to ban everything”. There is a balance to be found in the way that this is looked at.

I do not know what the Minister’s response will be to this amendment, but I hope that he is able to give some words of encouragement to the setting up of the working group and that it specifically looks at separate issues, because it is all too easy to say, “That will cover the whole”, when it clearly will not. I will again listen with interest to what the Minister has to say on this, but I hope we clearly recognise the needs of those who would like to access countryside but cannot, and those who would like to use 4x4s in a particular manner.

One further thing to add to this debate is the whole question of the countryside and of our wildlife. Not too much takes place on that; I suspect that these issues have been driven aside. Another aside to add is that those of us involved in stewardship and single farm payments know very well where we have got the six-metre strips or whatever it might be. One is very careful as to what motorised vehicle goes over that at all because of the damage to the wildlife and its sustainability. I am delighted that this amendment has been raised, and I look with interest to the response we get from the Minister.

[Lord Skelmersdale]

My Lords, would my noble friend accept another thought? As she said, she is a farmer but not a farmer on—for example—the Quantocks, or Exmoor, or further north in Cumbria like the noble Lord, Lord Judd, although I believe he is not a farmer; none the less he is a resident. They have to get around their land on some sort of vehicle, whether it is a tractor or a quad bike.

[Baroness Byford]

Indeed. I am so sorry I did not include quad bikes; they are a normal sort of motor vehicle that is essential to farming in many areas. We do not happen to have one on our farm, but we do not have the sort of access being debated this afternoon. My noble friend is quite right to reflect on how important that access is.

[Lord Grantchester]

My Lords, the stakeholder working group is to be commended on finding and building consensus around the main interested groups to recommend the changes to the Bill as a package, to streamline the process, and to make quicker progress with less contention and confrontation, even though there may appear to be plenty of time until 2026, the cut-off date under the CROW Act 2000. We agree with the measures in the Bill as a balanced approach to speed up the process. We wish to retain the consensus and build on it. I am grateful to the Government for listening to our views and those of many others, reflecting on the proposals and coming forward with these further technical clarifications. We agree that the stakeholder working group must be retained following this excellent report, and its remit extended to experience more contentious, protracted issues. Indeed, in the other place, the Minister agreed to set this up.

The problem raised through Amendment 17 is one that needs addressing, but not in the context of this Bill. This is not to deny that there are issues, costs and damage created by the use of off-road all-terrain vehicles. However, they must be addressed in the context that 62% of byway traffic is due to land management and dwelling access, with the remaining 38% due to recreation. The damage done by this 38% cannot be denied, and the noble Lords, Lord Bradshaw and Lord Cameron, and my noble friend Lord Judd have highlighted this tonight. But 70% of byways are without drainage, and much damage can be done by farm vehicles, water erosion and poor maintenance. The stakeholder working group must be allowed to examine the issue to find solutions first, to be arrived at through dialogue, a process more likely to result in less conflict, more compromise and thus acceptance, reducing the need for enforcement. Ministers could then make better informed decisions. These measures relating to public rights of way will bring benefit to all interests—land owners, local authorities and the public, even with their competing interests.