Deregulation Bill

Debate between Tom Brake and Brooks Newmark

Monday 23rd June 2014 Commons Chamber

[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.