Deregulation Bill

Debate between Lord Skelmersdale and Earl Cathcart

Tuesday 3rd February 2015 Lords Chamber

[Lord Skelmersdale]

My Lords, as my noble friend Lady Byford said, my Amendment 12 has been grouped with her Amendment 7. Not surprisingly, the scene has moved on in the long period since Committee, when there was a surprising amount of support for the series of amendments in my name which had the effect of a presumption in favour of a diversion or stopping up of a footpath that passes through the curtilage of a residential building, including the gardens and driveways of premises. In other words, those amendments were somewhat more restrictive than that in the name of my noble friend, which I supported at the time and, as noble Lords can see from the Marshalled List, still do.

Since then, strange things have happened and I have had reports of odd decisions made by footpath officers in local authorities, the worst of which was the refusal to annul a recent order dedicating a footpath through someone’s dining room. The council in question refused point blank to change its decision. It may be—I am sure my noble friend could tell me—that the officers are not allowed to do this under current legislation but they most certainly are under this Bill. That is one good reason for the Bill. Another local authority insisted that footpaths going through a farmyard barn, which has been in existence since well before footpaths were regulated, should be shown on the definitive map. It is not unlikely, in the modern age, for barns to be converted into housing, with the full agreement of the local planning inspector. Nobody seems to check whether a footpath goes through the old farmyard and thus becomes, potentially, a major inconvenience to the owner of the barn conversion. There is something wrong, somewhere.

It was for these reasons that I moved my amendments in Committee. Because it was a Grand Committee I could not press them, although at the time I was sure I would have been justified in doing so, such was the support from all around the Committee. My noble friend Lord De Mauley was far from keen on my approach and wished to stick to the formula in the Bill—namely, the right for the householder to apply to the local authority and, if necessary, appeal to the Secretary of State. This was backed up by a meeting which he kindly hosted shortly after Christmas, to which my noble friend Lady Byford has already referred. At that meeting, it was explained that the scheme in the Bill would take time to bed down among local authorities and the rank and file green lobby. The department wanted time for this to happen, for the curious reason that the consultation on the agreement of the footpaths working group had not gone wide enough. One rather wonders why the working group existed in the first place, but it did and it agreed changes to the Bill which the Government have been so reluctant to approve that they just have not done it.

I hope that I am not taking my noble friend Lady Byford’s name in vain when I say that both she and I are suspicious as to whether the scheme in the Bill, backed up by guidance to local authorities, simply will not work, however thorough the consultation is. Amendment 7, to which I have put my name, asks, as my noble friend said, for the department to produce a report on whether the scheme has actually worked or not after two years. I have to say that I consider the amendment to be very mild, even though it presumes that legislation will follow if the report is negative, although it does not say so. That, of course, means primary legislation, and it will be some time before that becomes law, even if it gets approval from the business managers.

Amendment 12 allows the Secretary of State a fall-back position, whereby, if the proposals in the Bill are not followed by local authorities, the Secretary of State can lay regulations to make rules according to which a local authority shall make decisions regarding the scheme. This will have two distinct advantages. First, it will reduce the number of appeals, which are likely to be much higher than the department currently envisages, because I suspect that most aggrieved applicants will appeal against the local authority decision on the basis that the latter has not followed the guidance. At the same time, it will cut out vexatious appeals because everyone will know what the rules are. In the event that this amendment finds favour with your Lordships, it would be necessary to have a further one at Third Reading specifying that the regulations will be by affirmative instrument.

Returning to my basic point, it is quite wrong for footpaths to oppress home owners by taking away the enjoyment of their close property and, to that extent, the Bill, imperfect as it is, may help.

[Earl Cathcart (Con)]

My Lords, I spoke in Committee in support of the amendments in the name of my noble friend and I will do so again today.

I have three points. First, if you have a public right of way through your garden, you have lost your security, safety and privacy. Anyone can walk through your garden at any time of day or night. Their dogs may run loose, frightening your children, fouling your garden, chasing your pets and even killing your chickens or cats, but there is little or nothing you can do about it. You may be subject to theft or vandalism. Secondly, it costs several thousand pounds to divert a path, but it costs absolutely nothing to object to it. This increases the cost to the applicant dramatically, often beyond their reach. We should be trying to make it easier for the applicant. Thirdly, as my noble friend Lady Byford mentioned, the law as it currently stands does not allow home owners to apply for permission for gates or stiles. Without these, you cannot allow your pets to be left, or allow your children to play, unattended in your garden. This needs changing.

My honourable friend Tom Brake, speaking for the Government at Third Reading of this Bill, said:

“The Government acknowledge that for householders, farmers and others, an intrusive footpath can have a substantial impact on their quality of life or on their ability to run a business. We understand that while this is not a widespread problem, where it occurs it can cause severe difficulties, and in a significant number of cases people have been put through years of considerable inconvenience and stress”.—[Official Report, Commons, 23/6/14; col. 77.]

I could not agree more. I understand that, when the Bill was going through the other place, the Government were going to propose an amendment to rectify this but for some reason they did not. This House has a perfect opportunity to put that right.

My noble friend Lady Byford has also mentioned the concern that there is no presumption that the paths will be diverted away from gardens, houses and businesses. There should be. The Government say that there is guidance on this, but it is only guidance. Some councils comply with it, but too many do not. The answer is for the Government to put something in the Bill, and I hope that my noble friend will.