Deregulation Bill

Brooks Newmark Excerpts

Monday 23rd June 2014 Commons Chamber

[Bill Wiggin]

I draw the House’s attention to my entry in the Register of Members’ Financial Interests.

New clause 15 is all about safety. I want to see a fall in the number of deaths that take place every year as a result of rural accidents, as I am sure does every Member. I am passionate about the safety of those who use the countryside. My recent ten-minute rule Bill proposed greater detail in the recording of agricultural accidents. After discussions with the Health and Safety Executive, I am delighted that my proposals have been accepted. I must thank the Minister of State, Department for Work and Pensions, my right hon. Friend the Member for Hemel Hempstead (Mike Penning) for his support in discussions with the HSE.

I believe, however, that further measures are necessary. As a farmer, I am alarmed at the risks created by footpaths passing through fields or farmyards. A 21st-century farm is dangerous. Equipment is often operated at higher speeds, is incredibly heavy and has risky blind spots. Livestock can be unpredictable, territorial and easily provoked, for instance by a dog. The death of Roger Freeman, caused—or not—by a Brown Swiss bull in 2010, and the subsequent negligence trial, has brought the issue back into the public eye. To quote a letter from the Ramblers to me,

“The case has really highlighted the necessity to re-examine legislation around bulls being kept in fields with footpaths.”

Recently, I have been contacted by two constituents who have been unable to fulfil their role as parish footpath officers, for fear of their safety on local footpaths. My constituents report being chased from routes by dairy cows. They were particularly harassed when accompanied by a dog and describe the cattle as “extremely persistent and worrying.” Nobody—neither walkers nor farmers—should be placed in a position where their safety is at risk.

Equally, farmers cannot be placed in a position of responsibility for the safety of walkers among livestock. No farmer can say with complete confidence that their cattle would always be 100% safe, including if, for example, they had been stung by a wasp. Farmers are therefore incredibly vulnerable to claims of negligence in accidents where the only evidence is from the victim or hearsay. This pressure can foster resentment against those who use footpaths, creating an atmosphere of walkers versus farmers. Such a division can only be unhelpful. The priority for all must be safety.

Traditional rights of way cannot be held to be a greater priority than the safety of those using them. The risks are very real: 24 people have been killed by cattle in the past four years. We cannot continue to turn a blind eye to the issue. The right to walk in the countryside does not mean the right to die walking. We must therefore be flexible and allow alterations of rights of way to favour safer routes. Common sense on this issue must prevail.

I must also raise deep concerns about privacy and security in the countryside. One of the great pleasures of the British countryside is that it is free to be enjoyed by all. In this day and age, however, the access provided by footpaths is at odds with society’s fear of strangers. The privacy and security of a family home is something we treasure, yet both of those values must be sacrificed by those who have a footpath running through their home or garden. A footpath allows strangers to come on to their property and close to their family at any hour of the day or night. The feeling of security in one’s home is a luxury that most people take for granted. An Englishman’s home may be his castle, but for those with a footpath through their property, there is no security behind their walls.

The desire to protect one’s privacy and security is entirely legitimate and rational. It is natural to be wary of strangers. In January, the Intrusive Footpaths campaign undertook a survey of home owners’ experiences of footpaths. The results present a shocking picture. The IFC found that footpaths through private property have been the cause of two suicides, 12 nervous breakdowns and numerous cases of financially crippling disputes. Families affected in this way should be supported by appropriate legislation, not abandoned to cope with the consequences.

[Mr Brooks Newmark (Braintree) (Con)]

I am listening to my hon. Friend, but Opposition Front Benchers are chuntering. Unfortunately, people who live in urban areas do not appreciate that people who live in rural areas have footpaths that go within 5 or 10 yards of their front doors. It puts enormous stress on people, particularly those who live by themselves, when strangers walk past their front door. Does my hon. Friend agree that it is important that the Minister takes note of the stresses put on families who feel that their privacy is being invaded? We are not talking about footpaths that are miles away from people’s front doors.

[Bill Wiggin]

My hon. Friend is right, and I am sure he will seek to catch your eye, Madam Deputy Speaker, and share his expertise with the House. The key thing for Opposition Members to remember is that we are talking about not rights of way, but people killing themselves, or being seriously hurt or injured. That is what we are trying to avoid. We are trying to make sure that every person who walks or works in the countryside is safe.

No one should feel besieged in their own home. Rights of way should not affect someone’s right to safety. I am therefore asking again for flexibility, as I fear that if privacy is not considered as reasonable grounds for safely altering a footpath, more people’s lives will be plagued by intrusion. Common sense must again prevail.

I read with interest the 2010 “Stepping Forward” report by Natural England’s stakeholder working group on unrecorded rights of way. Although the group did not address the safety and privacy of routes, I believe that my new clause is in the spirit of its recommendations. The report praised surveyors for taking use of land into account in footpath diversions. In its evidence to the Bill Committee in February, the group indicated that it has discussed diversions in greater depth since 2010. In her evidence, Sarah Slade of the Country Land and Business Association emphasised her support for making people’s lives easier through diversions. My new clause is a natural progression from the group’s recommendations. I strongly believe that all interested parties would regret missing this opportunity to ease the risks and conflicts created by footpaths.

The stakeholder group’s guidance, which I suspect the Government hope to make statutory, will not overrule the tests that determine changes to footpath routes, so it is not equal to the task in hand. Nor will it deal with the standard objection of—please forgive the wording—“not substantially less convenient”, which is the excuse given when a footpath may be a few metres longer than it was previously. New statutory guidance may therefore help, but it will not solve the problem.

--- Later in debate ---

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

I am sure, Madam Deputy Speaker, that you will be pleased to learn that members of my constituency Labour party and I took part yesterday in what we call, in a comradely fashion, a red ramble. We walked from the site of the battle of Newburn Ford to Wylam, the birthplace of the great engineer George Stephenson. We walked most of the way across the land of the Duke of Northumberland. Unfortunately, we did not see any red squirrels, but we enjoyed the unequalled beautiful countryside, and views of the Tyne. As we walked, we discussed the role of the Labour movement over hundreds of years in fighting for the right of public access, sometimes illegally, including in the mass trespass of Kinder Scout. I mention that to set out to the hon. Member for North Herefordshire (Bill Wiggin) the depth of feeling among Labour Members that causes us to oppose new clause 15.

In government, Labour has demonstrated that depth of feeling by long supporting public access to the countryside and the wider natural environment. In 1949, the post-war Labour Government passed into law a requirement to record public rights of way on a legally conclusive document known as the definitive map and statement. Labour’s 1987 manifesto for government outlined commitments not only to offer all people more freedom to explore the open countryside, but to strengthen the protection of our national heritage. The Countryside and Rights of Ways Act 2000 was one of the most successful and supported pieces of legislation in this area, and it strengthened and consolidated the aims of our original National Parks and Access to the Countryside Act 1949.

[Mr Newmark]

I am listening carefully to the hon. Lady, but I do not think that any Government Member disputes the right to go about the open countryside; that argument was won a long time ago—congratulations on winning it. We are concerned about the right of individuals effectively to intrude on people’s private property and to get—

[Mr Andrew Turner (Isle of Wight) (Con)]

Rubbish.

[Mr Newmark]

Excuse me—[Interruption.] Does my hon. Friend wish to intervene?

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. There can be only one intervention, and it should be a short intervention.

[Mr Newmark]

Thank you, Madam Deputy Speaker. We are talking about the right of an individual to walk on someone’s property, and how to find a way forward, with local councils, on moving a path slightly, so that people can get to their destination.

[Chi Onwurah]

This is all about individuals’ rights to walk on private property, just as I walked over the Duke of Northumberland’s land yesterday. I do not want to belittle or trivialise cases in which property owners experience significant stress, but there are already powers that permit landowners and land managers to apply to a local authority to make an order to divert or close a public path that crosses their land, so additional legislation is not required.

--- Later in debate ---

[Chi Onwurah]

The Bill’s measures on this subject derive from the Natural England stakeholder working group. I think that the hon. Gentleman would agree that finding a consensus between users, landowners and local authorities, and between Ramblers and the Country Land and Business Association, is such an achievement that it should not be jeopardised. If he wants further proposals to be brought forward, he should work with the stakeholder working group to deliver consensus on them. It is imperative that the measures agreed by the working group are implemented as soon as possible. We do not want them to be jeopardised by the new clauses in the group, especially because those new clauses raise several important questions. For example, who would decide that a public right of way was intrusive? Why are the measures necessary when there are already powers that permit landowners to apply to a local authority, as I set out? Who would define what “limited circumstances” were?

A presumption in favour of a diversion would take powers away from local authorities and reduce the ability of communities to have a say. Is this in accordance with the localism agenda, which I thought all Members on the Government Benches agreed with? Local communities, through their local councils, should have the ability to shape their local area. We should support the rights of all to access the countryside and to maintain existing rights of way, especially as the local countryside offers our citizens benefits in terms of health, exercise and mental well-being.

[Mr Newmark]

I shall speak to new clauses 17, 18 and 19.

Many people up and down the country, especially in rural areas, face the daily personal stress and blight of their properties caused by highly intrusive public rights of way across their land, including the gardens of family homes and working farmyards, as well as commercial premises. The new clauses that I propose set out how local authorities should respond to requests to divert or extinguish rights of way, to applications under the right to apply introduced by the Countryside and Rights of Way Act 2000, or negotiation under the new modification consent order process set out in paragraph 5 of schedule 7 to the Bill. Specifically, my new clauses 17, 18 and 19 address and amend sections 119, 118 and 116 respectively of the Highways Act 1980.

It might be helpful for the Minister to have a little context and background to my new clauses. The existence of public rights of way within private property raises several concerns, many of which have been highlighted to me by my constituents. Most important among them is the security of the family and property of the landowner, in particular the security of young children. Having in their backyard a public footpath that anyone can access is worrying for parents and impacts on the daily life of their families.

[Mr Andrew Turner]

Is my hon. Friend aware that people who own such footpaths can apply for them to be moved? I do not see why he is proposing an alternative method.

[Mr Newmark]

As my hon. Friend the Member for North Herefordshire (Bill Wiggin) pointed out, there are issues of safety and security. This is not a subject that I knew anything about until it was raised with me by several constituents, who are extremely frustrated with the existing process designed to protect their family and property. That is what my new clauses are about.

Following on from this are concerns with potential infringements on the privacy of residents and their expectation of being able to relax without strangers appearing in the same contained space. Pathways across land can also reduce the value of the property. That, by the way, is probably the least of my concerns, but it has been raised by my constituents. Finally, farmyard operations put the public potentially at risk because of the limited space through which these routes pass.

[Susan Elan Jones (Clwyd South) (Lab)]

I could accept what the hon. Gentleman says if he were referring to hustling, for example, but the fact that he does not seem to address is that many rights of way are very historic. When I was taken by my grandfather to the footpath that went from Esclusham Above to Esclusham Below, I did it in the knowledge that he went with his grandfather. Such rights are intrinsic in our rural areas. That is what we are frightened about.

[Mr Newmark]

Yes, yes. I am totally sympathetic with what the hon. Lady says. I am not trying to change historic rights of way. My intention is to create more flexibility in the system to allow paths that go right past people’s front doors and their gardens to be moved slightly. I am not looking to stop people’s access to those ancient rights of way.

In order to solve these problems, the owner of the land in question must seek an order to divert or extinguish the right of way through a modification consent order or an application for public path order. This guidance applies where a public right of way passes through a garden which forms part of the curtilage of a residential dwelling, a working farmyard or forestry yard, or other operational business or working industrial premises. The interests of the landowner must be weighed against the overall impact on the public as a whole—a point that Opposition Members emphasised—and the privacy, security and safety of the landowner are all considerations to which due weight should be given. Furthermore, if the public right of way is extinguished, it should be diverted elsewhere in order to reduce inconvenience to the public.

Now that I have laid out at least some of the rationale for my new clauses, let me touch briefly on each new clause in turn. New clause 17, entitled “Presumed diversion of intrusive public rights of way in limited circumstances”, amends section 119 of the Highways Act 1980 and facilitates statutory guidance to allow for the diversion of rights of way that pass through domestic or business premises on the grounds of privacy, safety or security. New clause 18, entitled “Presumed extinguishment of intrusive public rights of way in limited circumstances”, amends section 118 of the 1980 Act and facilitates statutory guidance to allow for the extinguishment of rights of way that pass through domestic or business premises on the grounds of privacy, safety or security if a diversion is not possible as the right of way provides access to a vital local service or amenity not otherwise accessible. Finally, new clause 19, entitled “Presumed extinguishment of intrusive byways open to all traffic in limited circumstances”, is an amendment to section 116 of the Highways Act 1980 and creates a presumption that byways open to all traffic should be diverted so as not to pass through residential or business premises unless the byway does not impact on the privacy, safety or security of the premises or provides access to a vital local service or amenity not otherwise accessible.

I am sure that the Minister will agree that although it is essential that we respect the ancient rights provided by footpaths and byways that the hon. Member for Clwyd South (Susan Elan Jones) spoke about in her intervention, it is important that we also respect the privacy, safety and security of individuals and their property. That is the narrow path that I am trying to navigate. I hope the Minister will acknowledge that new clauses 17, 18 and 19 are drafted both to be reasonable to landowners and to respect the rights of individuals to have access to byways, especially if those byways provide access to a vital local service or amenity not otherwise accessible. In this spirit I look forward to his response to new clauses 17, 18 and 19 as well as to new clause 15, which is proposed by my hon. Friend the Member for North Herefordshire. I end by thanking my constituent Roger Duffin for raising this important issue and for his guidance in enabling me to draft a constructive solution to a sensitive problem.

[Tom Brake]

I thank my hon. Friends the Members for North Herefordshire (Bill Wiggin) and for Braintree (Mr Newmark) for tabling their new clauses and allowing us to discuss the important topic of rights of way and the impact that these can have.

We recognise that all four amendments seek to address the issue of intrusive public rights of way. The Government have been giving very careful consideration to this, in discussion with the rights of way stakeholder working group. The work done by the group has been invaluable in pulling together the potentially divergent views of landowners and ramblers.

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, as my hon. Friend the Member for North Herefordshire mentioned.

It is not clear to me whether my hon. Friend feels that his amendment would help prevent incidents involving dangerous cattle on footpaths, unless it is envisaged that the presumption that paths should not pass through other land where safety is an issue could be used to close or divert rights of way that run through fields where cattle are present. That would clearly be a radical and sweeping measure that could lead to the closure or diversion of innumerable rights of way with questionable justification. The issue of cattle attacks on public rights of way is being addressed separately by the Government, and there is no suggestion from any of the parties involved that primary legislation is required to sort out the problem to which my hon. Friend rightly referred. It is clear, however, that there has to be a change in the way in which both legislation and policy operate if people are to get a satisfactory hearing, and that is what the Government are doing in the Bill.

We very much sympathise with people’s genuine concerns about the problems that can arise from footpaths running through private gardens and farmyards and recognise that we need to find an acceptable solution, but we do not believe that these new clauses are the best way to go about this. Measures are already being developed that will make a significant difference to the way in which requests for diversions and extinguishments of rights of way will be dealt with by local authorities. We are working towards making effective the “right to apply” provisions in the Bill. That 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, so local authorities will not be able simply to rebuff or ignore representations from a landowner, as they can at present. I hope that my hon. Friends will see that as a positive development.

Moreover, 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. That guidance has been developed in agreement with the rights of way stakeholder working group.

[Mr Newmark]

The Minister was actively listening and I appreciate his response, but I would ask him to be sensitive to the cost of appeal. Many of these people are not wealthy and it is important that we keep costs to an absolute minimum.

[Tom Brake]

Costs can be a significant issue, and the Government and local authorities will clearly want to ensure that they are kept to a minimum.

My hon. Friend the Member for North Herefordshire asked whether the guidance would be statutory. This is a deregulation Bill, the purpose of which is to minimise the statutory burden rather than increase it. We believe that the combined effect of the right to apply and the guidance will have the desired effect, and we should see how the measures work out in practice before seeking to add to the legislative burden.

A draft of the guidance has been deposited in the House Library. We recognise that it needs further refinement and it remains open for comment. The rights of way reforms will also give local authorities more scope to deal with objections themselves, rather than having to submit every opposed order to the Secretary of State as at present. We believe that the provisions will make a significant difference, and until we see how well the “right to apply” provisions work alongside the new guidance, making further legislation would be premature. The new clauses would create new regulation where it may prove to be unnecessary and create more problems than they resolve.

The issue of intrusive public rights of way is emotive. I can appreciate why it arouses strong feelings and why those affected feel so strongly that something needs to be done. While putting the terms of a presumption on the face of the Act might seem like a way of making sure something happens, it carries a high risk that the presumption will not work as intended and, unlike the guidance, it would not be possible readily to make changes in response to unforeseen circumstances or to take account of new developments.

As the draft guidance on diversions and extinguishments has been developed by the stakeholder working group, there is a strong consensus around it, which means that it is far more likely to be complied with. We welcome the fact that a new working group is likely to be set up through the Department for Environment, Food and Rural Affairs, which will look at some of the other complex issues, such as green lanes—another very difficult issue to which to find a consensual solution. We firmly believe that solutions arrived at in that way, based on agreement and mutual interest, will result in less conflict and less need for enforcement in the long run.

The proposed new clauses also do not strike the correct balance between public and private interests, which is critical to the agreement reached on the guidance by the stakeholder working group. Legislative solutions imposed without a consensus tend to result in more disputes and legal challenges and there is no stakeholder consensus around the legislative changes proposed here. The new clauses would be quite a fundamental change to the current legislative status quo, which should not be made in the absence of either public consultation or stakeholder agreement, so I regret that I must urge my hon. Friends not to press their amendments.