Housing and Planning Bill

Lord Skelmersdale Excerpts

Wednesday 23rd March 2016 Lords Chamber

Moved by

[Lord Skelmersdale]

104: After Clause 179, insert the following new Clause—
“Presumed diversion or extinguishment of footpaths or bridleways which pass through the curtilage of residential dwellings
(1) Where a footpath, bridleway or byway passes through the curtilage of a residential dwelling, including the gardens and driveways of the premises, the council shall make, and the Secretary of State shall confirm, either—(a) a public path diversion order, or(b) a public path extinguishment order,unless— (a) the Secretary of State or the Council are satisfied that the privacy, safety and security of the premises are not adversely affected by the existence or use of the footpath, bridleway or byway,(b) the premises have been unlawfully extended to encompass the footpath, bridleway or byway,(c) where a public path extinguishment order is considered, it would be possible instead to divert the footpath or bridleway or restricted byway such that the privacy, safety and security of the premises are not adversely affected by its use, or(d) where a public path extinguishment order is considered, the footpath or bridleway or restricted byway provides access to a vital local service or amenity not otherwise reasonably accessible.(2) In this section—“public path diversion order”,“public path extinguishment order”,“footpath”,“bridleway”, and“restricted byway”have the same meaning as in the Highways Act 1980.”

[Lord Skelmersdale (Con)]

My Lords, after the last half hour, it goes without saying that we have had a long and exhaustive debate on the Bill, so I shall keep my remarks to an absolute minimum, especially as we now turn from the purely built environment, with which the Bill is chiefly concerned, to a few of the people who live in that environment and the problems that footpaths can cause them.

A tiny fraction of a percentage of the 140,000 miles of public rights of way go through the gardens of private family homes. Unfortunately, once they are recorded on the designated footpath map, it is as though they are set in concrete, and they will of course be at the cut-off point in 2026. Even where councils make a mistake, it seems impossible to change their mind. I know of one case where the council confirmed a footpath going straight through a home owner’s sitting room, subsequently saying that it could not correct its admitted error. That is a clear nonsense.

When a footpath goes through a garden, however—which is my reason for putting down this amendment—it does not take much imagination to appreciate that this can cause immense hardship for the owners of the property, effectively causing the loss of the normal use of the garden. I know of at least 25 such cases. Would any of your Lordships be comfortable if your children or grandchildren, or indeed pets, were to be left alone in such a garden? Nor is it beyond the wit of a nefarious character to peer into windows to see whether a house is worth burgling. So there are obvious security, safety and privacy issues. Homes whose owners have spent a lifetime paying off the mortgage can become unsaleable and the owner trapped.

Many of these paths are little used and most of the general public have no wish to go through a family garden. However, local government is required by statute to keep these paths open, in some cases even requiring home owners to remove the gates to their gardens. There are examples of bankruptcy, breakdowns and even suicide, and these will become more frequent as the population grows. This cannot be in the public interest and, to my mind anyway, is against the spirit of Article 8 of the Human Rights Act.

The last Government, in last year’s Deregulation Act, pledged to create a presumption in favour of diverting or extinguishing such paths. That is a principle established in, for example, the Land Reform (Scotland) Act 2003, but this goes way over the top. In agreement with the stakeholder working group, Defra is to produce guidance to local authorities on the subject. A small group of affected people belonging to the Intrusive Footpaths campaign has had meetings with Defra and much time has been invested by all parties in trying to improve this guidance. It strikes me as odd, to say the least, that the stakeholder group the Government consulted apparently also has to approve the guidance, and rumour has it that this guidance is to be less forceful than the original working group agreement. I ask the Minister whether that is true. Whether it is or not, it is the opinion of at least three independent specialist rights of way lawyers that it is a matter of legal fact that, no matter what is in the guidance, it will in most cases be rendered ineffective by existing statutory tests, which are to be found in the Highways Act 1980. Guidance cannot override statute and as such cannot on its own deliver the Government’s declared policy objective. To make matters worse, this guidance is not even statutory, which it certainly should be, overriding such existing law that gets in the way of reducing this undoubted problem.

My amendment, however, goes much further than this. It calls for local councils, backed up by the Secretary of State, automatically to extinguish footpaths or divert them to the curtilage of domestic properties, unless they are satisfied that privacy, safety and security, which are the important points, are not affected by the existence of a footpath, bridleway or byway. Whether this amendment is acceptable or not—and I strongly suspect that it is not—a statutory footing for the Government’s policy is essential. I beg to move.

[Lord Greaves]

My Lords, I declare my interest as the vice-president of the Open Spaces Society, as well as my other outdoor activity interests, which are in the register.

This amendment is a sledgehammer to crack a nut. The noble Lord makes it sound as though the countryside of England is a nightmare. This is absolutely not true. There are perfectly workable procedures for dealing with the kinds of circumstance described by the noble Lord, Lord Skelmersdale. In particular, Defra has found a mechanism through the stakeholder working group, which represents people from all parts of the countryside, from recreation to landowners and other users. This is a mechanism by which changes in the law take place by agreement and consensus. It has been extremely successful, has worked very well and continues to do so. To drive a coach and horses through that at this or at any stage would be very unwise. I hope that the Minister will explain that, apart from anything else, the amendment really does not belong in this Bill.

--- Later in debate ---

[Baroness Williams of Trafford]

I applaud my noble friend Lord Skelmersdale’s efforts to help those who face problems with a public right of way that passes through their farm or garden. He will know through his contact with Ministers in Defra that the Government have considerable sympathy for those people who face these issues and who may feel that the system has let them down. Where these cases occur, people may experience acute problems: my noble friend has cited some examples, and I can think of others. Although the numbers are comparatively few, and we should ensure that any changes we make to legislation are proportionate to the extent of the problem, nevertheless, the Government are determined to help by putting in place a remedy.

Noble Lords may recall the passage of a suite of measures in the Deregulation Act 2015 which aimed to reform the system of recording and diverting public rights of way, to which my noble friend referred. The Government are now in the process of implementing these measures, which will come into effect later this year. We believe that the combined effect of these measures, which received cross-party support in both Houses, will make a significant difference, and that we should not legislate further before seeing how they work out in practice. A package of measures such as that, which is being implemented through agreement among stakeholders, is far more likely to prove successful in practice.

There is clear agreement among the stakeholders on the working group that developed the package of reform that the major difficulty for landowners is in getting local authorities to make a diversion or extinguishment order in the first place. Our plans to implement the right to apply for such orders will overcome this. The right to apply will enable a landowner to make a formal application for the diversion or extinguishment of a public right of way. With that will come the right to appeal to the Secretary of State if the authority rejects the application or fails to act on it. Therefore, local authorities will no longer be able to ignore requests or dismiss them out of hand. They will be obliged either to make an order or to be prepared to justify their reasons for not doing so on appeal to the Secretary of State.

The provisions in the Deregulation Act allow the right to apply to be extended to land-use types other than agriculture, forestry and the keeping of horses— for example, private residential gardens. The right to apply will be supplemented by guidance that will effectively act as a presumption to divert or extinguish public rights of way that pass through the gardens of family homes, working farmyards or commercial premises where privacy, safety or security are a problem.

The noble Lord references guidance and I will come back to that in a moment. A further hurdle is to get an order confirmed. However, according to the Ramblers, which keeps accurate records of these matters, of the 1,257 diversion orders which have reached a conclusion in the past three years, 94% did not attract any objections. Of the 6% that did, less than 1% were not confirmed following submission to the Secretary of State. The guidance will give authorities more scope to confirm orders made in the interests of the landowner in circumstances where a right of way may cause hardship because it goes through the garden of a family home, a working farmyard or other commercial premises.

There is no intention to water down the guidance, which was deposited in the House Library during the passage of the Deregulation Act. Defra officials continue to work with the stakeholder working group and the Intrusive Footpaths Campaign to finalise the drafting. We believe that the combined effect of the right to apply and the guidance will have the desired effect and we should not rush to legislate further before seeing how these measures work in practice. Moreover, under the right-to-apply provisions, the Defra Secretary of State will be the confirming authority for all disputed orders.

I am happy to reaffirm the commitment made by the previous Government that we will review, within two years of implementation of the reforms package, how effective the right-to-apply provisions and the accompanying guidance have proved to be. The review 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 changes, we will consider the introduction of further measures.

The amendment, which was also spoken to by my noble friend Lady Byford, is also concerned with public rights of way. However, she refers to urban routes in current use which are not recorded on the legal record of public rights of way, the definitive map and statement. The amendment would reduce the work of local authorities by removing a whole class of routes from the work to update the record.

I referred earlier to the package of measures in the Deregulation Act 2015 concerned with improving the processes for diverting, extinguishing and recording public rights of way. I also mentioned that the Government are working closely with the stakeholder working group which developed the original package of measures.

The secondary legislation will include regulations made under Section 54(1) of the Countryside and Rights of Way Act 2000—mentioned by the noble Lord, Lord McKenzie—which allows the Secretary of State to specify descriptions of unrecorded routes which will not be extinguished in 2026. The working group and the Government are mindful of the need to consider urban as well as rural. We think that no further primary provisions are required to achieve the outcome sought by my noble friend. With these assurances, I hope that my noble friend will be persuaded to withdraw the amendment.

[Lord Skelmersdale]

My Lords, I am very grateful to my noble friend Lady Byford for staying so late, I believe at the expense of her dog. Be that as it may, I was surprised to be maligned by the noble Lord, Lord Greaves, who called my amendment a sledgehammer to crack a nut. I was surprised because I admitted that I know of very few people who are affected by this problem. However, I remind the noble Lord of a dictum of my late noble friend Margaret Thatcher, who said:

“We are not in politics to ignore people’s worries. We are in politics to deal with them”.

I fully accept that the Minister believes that the problem has been dealt with and the solution in the Deregulation Act will solve it. I am absolutely convinced it will not, so I was delighted to hear that the Government are prepared to give it a chance of two years and then decide whether I am right or the Minister is right. On that basis, I beg leave to withdraw the amendment.

Amendment 104 withdrawn.