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Clause 27—(Surveys Of Public Paths, Etc, And Preparation Of Draft Maps And Statements)

Volume 467: debated on Tuesday 19 July 1949

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The Parliamentary Secretary to the Ministry of Town and Country Planning
(Mr. King)

I beg to move, in page 18, line 3, at the end, to add:

"(7) A highway at the side of a river, canal or other inland navigation shall not be excluded from any definition contained in the last foregoing subsection by reason only that the public have a right to use the highway for purposes of navigation, if the highway would fall within that definition if the public had no such right thereover."
This is really a drafting curiosity. It might have been thought that the definitions of rights of way in Subsection (6) were incomplete; that whilst we have defined "footpath" and "bridleway," we have omitted to define a towpath. By the Amendment, we now include this in the survey.

The hon. Gentleman's explanation of the Amendment is very curious, for the wording of the Amendment contains no reference whatsoever to a towpath. It merely says that a highway shall not cease to be a highway if the public have rights of navigation along the highway. When I first read it I was reminded of the famous "Misleading Case" written, I think, by the hon. Member the junior Burgess for Oxford University (Sir A. Herbert), about the rights of navigation on the Thames Embankment and which rule applied, the rule of navigation or the rule of the road.

Is it not possible to find better wording than Ibis if we merely want to add "towpath" to the definition Clause? Is there any substance in the contention that the rights of navigation along a highway will make that highway cease to be a highway? I am not at present aware of any authority for that proposition; and if it is not the case that the rights of navigation along a highway alter the character of the highway to the extent that it ceases to be a highway, I cannot see why the Amendment is wanted. Its only effect, as I read it, is to provide that a highway along which the public acquire rights of navigation—presumably, because that highway is permanently covered with water—shall none the less not cease to be a highway. I must ask the hon. Gentleman to give some further explanation of this extremely curious wording. He referred to it as a curiosity, and to insert a subsection like this in a Measure dealing with national parks strikes me as a very remarkable curiosity.

I should have thought the position was quite clear. I used the word "towpath" colloquially. It is not enshrined in the wording of the Bill. The Amendment uses the words:

"A highway at the side of a river …."
The hon. and learned Member for Daventry (Mr. Manningham-Buller) can distinguish between that and a towpath if he wishes, but the distinction is not very great. The Bill as drafted defines a footpath and a bridleway and it so defines them as to include a highway at the side of a river. By the Amendment we propose to include this specific definition so that the survey shall include that form of path.

Does the hon. Gentleman say that the definition in the Bill excludes a highway at the side of a river where there is a right of navigation over the highway?

It excludes one upon which there is only a right of passage for the purpose of towing.

But that is not a right of navigation. The Amendment refers to

"a right to use the highway for purposes of navigation …."
There is not likely to be any navigating on the highway.

I rise only to rescue the draftsman, who, I think, is probably quite correct in suggesting the Amendment which has now been moved, from the wholly inadequate explanation which the Parliamentary Secretary has given of its purpose. Of course, as has been pointed out by my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller), the Amendment cannot possibly add "towpath" to the previous subsection. The Amendment only says that a highway shall not be excluded from the definition for a particular reason, and one has to find a towpath included by implication in the previous words. The previous words, as mentioned by the Parliamentary Secretary, are "footpath" and "bridleway," and I think that the reason why these words or some like them are required is explained by the words "but no other" in line 36, where the sub-paragraph reads:

"'bridleway' means a highway over which the public have the following, but no other, rights of way. …"
Of course, in the case of a towpath there may be a right which includes the right of pulling a barge on the river. It may be, therefore, that an Amendment of this kind is required. I do not suggest that the draftsman was wrong in suggesting to the Minister the inclusion of some such new subsection as the Amendment proposes, although, even so, I should have thought that the addition of a proviso might have been a little neater. But I am bound to say that the words chosen to carry out this purpose are about as puzzling to the layman as any words that could possibly have been produced. While I am quite certain that my right hon. and hon. Friends have no intention whatever of opposing the Amendment, I hope that the Minister will look at the words a little further before the Bill goes to another place to see whether he cannot find something a little clearer.

I hope that some effort will be made to alter these words in order to get in a simpler manner the result which we all want. I ask the Parliamentary Secretary, whose explanation I was following, to look at line 38 on page 17. I wonder whether the point is not already covered where Subsection (6) reads:

"'bridleway' means a highway over which the public have the following, but no other, rights of way, that is to say, a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway."
Would not a towpath be covered by that case where a horse is being driven along the highway?

4.0 p.m.

I can see the position in regard to towpaths, but what is the position with a tidal waterway, such as the Dart, where one cannot get between two points to houses at high water, and possibly not at low water, but where there has always been the possibility of driving a car between them? That is a matter of some importance which I hope the Minister will look at between now and a later stage.

The hon. Member for The High Peak (Mr. Molson) assumed that craft on a river are always pulled by a horse, but we wish to include a pathway by a river where there are towing rights, whatever those rights may be, and the definition as it stands excludes a path along which there is a sole right of towing. This Amendment inserts that exception, and I do not think it could be put more plainly.

I do not think the Parliamentary Secretary has got this right yet. If there is a right of towing, surely that would be a public right, and if it is a public right, it will be a public right of towing either by a human being or by a horse. There is no question of a public right of towing by machine having arisen. If there is, I should be interested to know from the Parliamentary Secretary whether any such right has been established alongside any river, or canal. The public right of towing must be by human beings or by horses. If that public right exists, surely it comes within the definition of "bridleway" because there will be a right of way on foot or a right of way leading a horse. If that is not covered, I ask the Parliamentary Secretary to pay some attention to the words of the Amendment he is seeking to insert, because the effect of that definition is not to include a footpath or towpath by the side of a river used for the purposes of towing, but to provide that a towpath shall not be excluded where it is a highway if the towpath is used for purposes of navigation. I have never heard of a towpath being used for the purposes of navigation and I suggest that the wording of the subsection is wrong.

I hope the Minister will not agree to alter this. It seems clear to me that one does not need to be in a boat to navigate it, as the hon. and learned Member for Daventry (Mr. Manningham-Buller) will realise if he has sailed a boat and the wind has gone dead on it. I do not see why one could not sit in a car and pull the boat, with someone steering it. That would be a very easy thing to do. I have seen a tractor pulling a boat. Navigating means moving a boat on water and for that one may use a machine, a car, a tractor, oneself or a horse.

I agree with part of the remarks of the hon. Lady the Member for Epping (Mrs. Manning). It is true that one may make use of a towpath for the purposes of navigation. My only ground of dissatisfaction is that the Parliamentary Secretary has again made a mess of it. He has not even got it right now. He spoke of a right to use the towpath solely for navigation, but, if he looks at the position of the word "only" in the Amendment, he will find that it provides nothing of the sort. The words we have to consider—and I am defending the draftsman from the wholly inadequate explanation of the Parliamentary Secretary—are:

"shall not be excluded from any definition contained in the last foregoing subsection by reason only that the public have a right to use the highway for purposes of navigation."
The Parliamentary Secretary has supposed the words to be "for purposes of navigation only," which is something quite different. The words in the subsection are required by the draftsman because of the words of limitation contained in the definition Clause. I give as an example the words in subsection (6), "but no other." Having regard to the obvious difficulty that these words have caused and to the fact that the Parliamentary Secretary has, on several occasions, made a mess of trying to explain the matter, I suggest that it should be looked into carefully in another place to see whether it can be dealt with, not by a new subsection, but by a proviso in the definition Clause.

I am not interested in towpaths but in places where there is access to a tidal way. We have had no answer to that point, although I am sure the Parliamentary Secretary intended to answer but accidentally forgot to do so. The point may not arise on this Amendment, but this seemed to be a suitable opportunity to raise it, as some part of my constituency is affected.

Amendment agreed to.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

I very courteously asked for an answer to a question which affects my constituency very much, as it does also the present constituency of the Parliamentary Secretary. He might tell me and his own constituents whether their rights are fully protected. I think they are, but I want to be sure.

The Clause is not designed to protect any particular part of the country or any particular person. It is a definition Clause and we are dealing with the definition of rights of way. Therefore, the point raised by the hon. Member for Torquay (Mr. C. Williams) does not arise.

On page 18, line 3, the last word but one is "so." It is difficult to attach any meaning to that word there and I think it should be omitted.

I am afraid the Parliamentary Secretary has not completely answered my question. Here we have perfectly clearly a right of way for navigation on tidal waters. With that have grown up rights of way and access from point to point when the tide is down. I am sorry I have not had an answer from the Parliamentary Secretary, because this affects a great many people. I hope that at some stage the matter will be made clear.

Question put, and agreed to.

Clause, as amended, ordered to stand part of the Bill.