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Rights Of Way Bill

Volume 171: debated on Friday 4 May 1990

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As amended (in the Standing Committee), considered.

Order for Third Reading read.—[Queen's Consent and Prince of Wales's Consent signified].

1.38 pm

I beg to move, That the Bill he now read the Third time.

No part of rural life has been more marked by dissension and by the setting up of barriers than the law on footpaths. I am proud that for, I think, the first time in parliamentary history we have reached Third Reading having achieved broad agreement on a difficult issue.

I pay tribute to all members of the Committee—not just Conservative but Labour Members who have taken a close interest in the Bill, especially the hon. Member for Denton and Reddish (Mr. Bennett), who is a well-known authority on footpaths and who has played a prominent part in persuading his colleagues of the Bill's merits. They may not have needed persuading, as the Ramblers Association is very much in favour of the Bill and would be bitterly disappointed, as would the millions of walkers, if the Bill was not to proceed to its final stage today. I hope that we can have a debate—but not too long a debate—and that millions of walkers and members of the Ramblers Association, who have followed the progress of the Bill so closely, will be rewarded by seeing what is a compromise, but a strong compromise, and a worthwhile Bill complete its Commons stages today and proceed to the House of Lords.

I thank not only hon. Members of all parties who have seen the Bill through to Third Reading, but members of the working party from the Ramblers Association and from the National Farmers Union, officials from the Department of the Environment and from the Ministry of Agriculture, Fisheries and Food, and my hon. Friend the Member for Saffron Walden (Mr. Haslehurst) who chaired the statutory working party on rights of way. I thank them for spending literally hundreds of man hours on producing a complex Bill in a highly complex area of statute. They have achieved a carefully considered Bill. I and my hon. Friend the Minister had to prove no fewer than 43 amendments in Committee so that lawyers in the Department of the Environment and in the Department of Transport could be satisfied that the Bill was fit to proceed to statute.

Hon. Members may recall that, on Second Reading, I referred to the benefits of the Bill and to the fact that it will help everyone with an interest in the footpath network. Many are involved, whether hard-pressed farmers, local authorities charged with safeguarding the public rights of passage or the millions of people who use footpaths, bridleways and other minor highways for healthy relaxing exercise and to savour the great beauty of our countryside.

Put simply, the Bill rewrites the unsatisfactory and largely unenforceable provisions on ploughing and rights of way in sections 134 and 135 of the Highways Act 1980. For the farmer, it replaces the limited "right to plough" across fields, footpaths or bridleways with a new wider right to
"disturb the surface of the path or way"
as necessary. Such disturbance could take place at any stage of cultivation. The right will apply regardless of the type of machinery used, so for the first time it gives the farmer clear statutory authority to disturb paths when carrying out the full range of essential operations.

I have taken great care to consult the farming community on the Bill. I know that it has not been an easy time for farmers, although I hope that, with the recent success of the green pound negotiations, things will ease up for them. I am pleased to say that the National Farmers Union, the Country Landowners Association and the local Lincolnshire National Farmers Union all support the Bill. As I represent an agricultural constituency, and as I accept the strong power of the NFU in this place, it would have been unwise to proceed with a Bill that did not have the support of the farming community.

The Bill will also introduce a new section 135 to the Highways Act 1980. It provides for consent to be given to the disturbance of paths in the course of any other "excavation or engineering operation" which is not directly related to the cultivation of a particular crop, such as the unavoidable disturbance to paths which occurs when installing or renewing field drains. The path or way can be diverted temporarily for up to three months where necessary.

Of course, the Bill provides a balance. There is a balance on the other side, which is why the Bill is supported by the Ramblers Association. The largesse towards the farming community is matched by a stricter duty on farmers to restore quickly paths that have been disturbed to such a condition that they are easy to use, by showing the line of the path on the ground. That duty is the key to the Bill.

Where the disturbance is the first in a cycle of cultivation—if I refer to this as the ploughing period, hon. Members will know what I mean, although with modern farming methods a plough as such may not be used—under the Bill that must be done within 14 days. For any subsequent operations, a path must be restored and marked within 24 hours. Either period can be extended by the authority—where it is justified—for up to 28 days. That will overcome what has proved to he a major problem for walkers and riders, and will help to reduce accidental trespass. Users will know what line to take across what can sometimes be, with today's larger fields, an extensive and featureless tract of land. In recent years that has become the major problem for ramblers and walkers, much more so than impenetrable obstacles. It is the sight of an enormous field of growing wheat, with no clear line of path, which is a major deterrent to the possibly millions of people who wish to use and enjoy our countryside.

The Bill will deal specifically with the related problem of paths that are difficult to use because of crops growing on them or encroaching from the sides. That, too, is a major deterrent for anyone wishing to use our path network and one that the authorities can deal with only when the crop has developed to the stage of physically obstructing the path, long after most users have been deterred. New section 137A will place the occupier under a clear duty to keep all rights of way and other unsurfaced highways apparent on the ground and clear of any crops that would make the path inconvenient to use. The crops in question are mainly arable.

Oilseed rape, the planting of which is increasing in our countryside, is a particular problem. It stands out as a vivid shade of yellow. Some people do not like it. although personally I like large splashes of colour. I do not know what Monet would make of it as I do not suppose that oilseed rape was as common in the fields of France then as it is now. The problem is that oilseed rape does not stay yellow and beautiful for long. It is a major deterrent to walkers and riders who wish to use the countryside. It grows vigorously to become a dense, utterly impenetrable jungle, reminiscent more of the tropical rain forests than of the British countryside.

Pushing through acres of wet, knee-high corn is a daunting and unrewarding exercise. I hope that under the Bill those problems will no longer have to be endured.

People will ask why people are deterred by growing corn. There is a myth that most walkers in the countryside have stout boots, wear beards, are members of the Ramblers Association, are equipped with up-to-date Ordnance Survey maps and know their exact rights and where they are going. However, Countryside Commission surveys show that most people who walk in the countryside are not so equipped, use paths only occasionally, and are often deterred by the sight of a large field of rape or corn with no apparent line on the ground.

The duty to keep paths clear of crops does not, however, apply to grass, which is defined in the Bill as
"a variety or mixture commonly used for pasture, silage or haymaking".
No one could object to walking over ordinary pasture land or through a pleasant hay meadow. I remember from my youth that I did not object to walking through long grass with my then girlfriend. The duty to enforce the new requirements rests with the local highway authorities. Proceedings can also be brought by the district council for the area, or the local parish or community council.

Hon. Members will appreciate the fact that prosecution by members of the public is a sensitive subject in the farming community. We have therefore been careful to carry forward the restrictions that exist under the 1980 Act. Members of the public will not be able to bring a prosecution against a farmer for failing to restore a disturbed surface or for the illegal disturbance of a surface—the direct successor to ploughing offences under existing legislation, in which prosecutions are similarly restricted. That is a major concession that the members of the working party and I made to the farming community in trying to hammer out a compromise, and I hope that the farming community will recognise it as such.

The Bill also removes a difficulty faced by authorities in bringing prosecutions. It provides that the occupier of the land will be clearly held responsible for the disturbance of a footpath or bridleway regardless of who carried out the work on his behalf and of any crops growing on it. Nor will authorities have to establish what kind of machinery has been used to disturb the surface. The major problem that local authorities have faced has been in identifying the person responsible, and the removal of that difficulty should make it much easier for local authorities to enforce the law. The fact that a surface remains disturbed after the time by which it should have been restored will be sufficient.

Even so. prosecutions are inevitably slow and time-consuming, and authorities are likely to consider them only as a last resort. If there is a key provision in the Bill, it is schedule 12A, to be inserted in the 1980 Act. That gives highway authorities—or district councils if acting on their behalf—simple direct powers to enter the land and carry out the work wherever an offence has been committed.

The power to act in default will be a major boon to local authorities. I hope that it will clear up the muddle in footpath law and convince authorities that they cannot go back to those who put them in charge of footpath law and say, "I am sorry. It is all too complicated. We do not have the time to bring prosecutions." If there has been a clear violation of the law—if a path is marked on a map and members of the public want to use it and the line of that path is not apparent because crops have been allowed to grow on it—local authorities will be able to act in default. They will not have to go through the time-wasting procedure of bringing prosecutions through the courts.

In addition to the requirement to mark the line of the path on the ground, that schedule is the key provision of the Bill and accounts for much of its benefit to ramblers. The provision will ensure that the new legislation is observed as a matter of course by the whole farming community. The deterrent to the farmer will be not that he may end up in court and be fined after months or even years but that the local authority will simply be able to do the work for him. Then, of course, the local authority will charge the farmer for the work.

With the stricter duties on farmers and the stronger powers given to local authorities, it is desirable to define the exact width of the right of way, and that we have done. Hon. Members may be surprised to learn that there is no general statutory width for the various types of right of way. Some paths have a legally recorded width. The width might be included in the description of the path given in the statement that accompanies the definitive map, or it might he referred to in some other historic document, and where that is the case that width will apply; it will not be affected by the Bill.

In general, however, no such widths are recorded and it has been necessary to devise figures for the width of various classes of rights of way. Quite what those widths should be was the subject of long debate in the working party. The figures chosen, which are based on advice from the County Surveyors Society, demonstrate the consensus that emerged within the working party. Such consensus has never been achieved before; it has certainly never been translated into statute. That is why Parliament has allowed the Bill to proceed as far as it has.

In effect, two figures are given, a minimum width and a maximum width, and those figures are set out in new schedule 12A. The minimum width is the minimum that the farmer would have to work to if he was to avoid running into trouble with the authorities. That is the figure that would be taken into account in any prosecution. For a cross-field footpath, the minimum is 1 m or about 3 ft 3 in. For a bridleway it is 2 m or about 6 ft 6 in. Where a footpath or bridleway is on the edge of a field, those figures are increased to 1·5 m and 2 m respectively, and for any other type of highway the minimum figure is 3 m or about 10 ft.

The maximum width is simply the maximum to which the authority may work when carrying out work in default of the occupier. That figure is 1·8 m for a footpath—roughly 4 ft 6 in. For a bridleway it is 3 m, or 10 ft, and it is 5 m, or 16 ft, for any other type of highway.

I want to raise a point that is important for the horse world. If the bridleway was wider than the maximum width that my hon. Friend has just described, who would pay for the extra width—or is that a matter that we need not discuss now?

I do not believe that it arises in the Bill. We have set minimum and maximum widths, but we must accept that those are loose definitions and broad guides. I have taken particular care to reassure the British Horse Society, of which my hon. Friend the Member for Ealing, North (Mr. Greenway) is such a distinguished member, on that matter.

I am a keen rider and I am sure that the horse world has concluded that, although it would have liked a greater width for bridleways, the Bill provides a fair compromise. With regard to horses, we must remember that the width of the path as it runs through the middle of the field is not the most important point, as I have stressed before. When one is riding a horse, the difficult part of the path is that which runs close to a hedge or a wire. In the Bill we specifically set a wider width beside a hedge or wire. I can reassure my hon. Friend the Member for Ealing, North about this point, which he has raised before. When we are considering a footpath that runs across the middle of a field, if for some reason the horse has to veer to the side of the path, that should not affect matters.

The Committee dealt with those points of detail very carefully and I do not believe that I need to labour them now. We passed 43 amendments in Committee designed to make the law clearer and to clear up any ambiguities. The amendments ensured that the Bill could not be seen to apply to major carriageways. There may be some problems about that, but I believe that the farmers and local authorities now have a sporting chance to know exactly what is a field path and a bridleway and also know their duties in that regard. The other major amendment that we made in Committee brought the penalties under this Bill into line with other Home Office penalties.

The Bill is a comprehensive package of measures which balances a range of conflicting interest. As such, I commend it to the House.

1.57 pm

On the Third Reading of the Computer Misuse Bill the point was made that the interests of different people had to be balanced. This debate is similar in that we must balance the interests of people who, like myself, enjoy walking in the countryside—something that I try to do every weekend—and the interests of the group described loosely by the hon. Member for Gainsborough and Horncastle (Mr. Leigh) as the Ramblers Association.

Members of the Ramblers Association do excellent work on behalf of their members and other people such as I. However, we must also consider people who, like a large number of my constituents, live in urban constituencies and who visit the countryside at weekends for recreational purposes. The Bill is also in their interests.

I do not wish to digress too far. The hon. Member for Gainsborough and Horncastle referred to the problem of oilseed rape which makes it difficult to walk along rights of way. However, there are also health problems from rape, and my hon. Friend the Member for Kirkcaldy (Dr. Moonie) could describe them in some detail. It has become clear in recent months that many people have an allergy to rape. That allergy causes a great deal of ill health in the summer months and the problem has only recently been attributed to that crop. But there are the interests of farmers. I speak with some knowledge about those interests—I do not wish to detain the House for long, however—because all my brothers-in-law are farmers. They seek every opportunity to impress on me their interests and, as they see it, the damage done to their crops by walkers.

As the hon. Member for Gainsborough and Horncastle has fairly said, however, the Bill is supported by many Labour Members. The hon. Gentleman mentioned my hon. Friend the Member for Denton and Reddish (Mr. Bennett), and another sponsor is my right hon. Friend the Member for Birmingham, Small Health (Mr. Howell). I know that my right hon. Friend is keen that the Bill should pass through the House this afternoon and become an Act.

The only risk to the Bill making progress this afternoon—I say this with some regret—has been posed by the hon. Member for Gainsborough and Horncastle. In making a silly, provocative and bogus point of order two or three hours ago, he invited Mr. Deputy Speaker to allow points of order to be raised by other hon. Members—they would have been entirely out of order—on the results of local elections, on the poll tax and on other partisan political matters. That was unfortunate. I regret also that the hon. Gentleman participated in what I regard as filibustering during the consideration of the Computer Misuse Bill. In doing so, he put at risk this important Bill.

If my hon. Friends and I wished to speak for a long time on the Bill's Third Reading, I am sure that we could do so. If we were petty enough to wish to pay back the hon. Member for Gainsborough and Horncastle in his own coin, it would be easy to do so. We shall not do that, however, because too much is at stake. The Bill is in the interests of ramblers and all others who enjoy the countryside at weekends. We must seek to ensure that the Bill's Third Reading is completed this afternoon so that it can become an Act.

I am conscious that if we allow the Bill to continue on its passage, but take a long time to do so, we shall prejudice the chances of the Road Traffic (Temporary Restrictions) Bill in which the hon. Member for Nottingham, South (Mr. Brandon-Bravo) has an interest. I understand that he has come here all the way from Nottingham fresh from the local elections, which we shall not discuss, to seek to get the Bill through the House. I do not want to prejudice that measure in any way and, therefore, I shall curtail my remarks. I regret that the hon. Member for Gainsborough and Horncastle engaged in such a high-risk tactic earlier in our proceedings.

2.2 pm

I shall be brief, Mr. Deputy Speaker. I apologise for not having been in my place for the first stage of the Third Reading of the Bill, of which I am a sponsor and in which horse riders have a keen interest, as my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) rightly said.

The fact that bridleways will now be required to be kept in place and to be properly maintained will overcome the disappearance of bridleways in recent years because of a lack of proper maintenance. In some cases, they were little used. A bridleway can go out of fashion, as it were, and not be used very much by riders or walkers for a period. When this happens, a bridleway is often lost. Many a farmer has ploughed up a bridleway deliberately, thereby absorbing a public right of way in his farm, and many bridleways have been lost for ever.

I am pleased to speak on behalf of the 3·5 million people who ride horses. They include people on low incomes as well as those on above-average incomes. I am most interested in the low-income group who ride. I have championed their cause all my life. In many instances they have lost the facility of access to the countryside and enjoyment of the countryside where it should not have been lost. The Bill will ensure that that does not happen in the future.

Some bridleways have, to farmers' displeasure, run across the middle of fields. When farmers have had such bridleways ploughed up, they have not been reinstated elsewhere on their land. That cannot be allowed to happen any more, and, as a result of the Bill, it will not. If a bridleway disappears to suit a farmer, it will have to be resited elsewhere. That is of the greatest importance. We cannot afford the loss of any more rights of way in the countryside bearing in mind the fact that an area the size of the Isle of Wight is lost every year to concrete and buildings. That is disgraceful. Our increasing population has fewer and fewer facilities where it can enjoy recreation by walking, angling or riding. That is extremely serious.

I am sure that my hon. Friend the Member for Gainsborough and Horncastle will correct me if I am wrong, but I assume that, should a rider be forced to leave a bridleway—perhaps when riders from opposite directions meet—he will not be subject to prosecution. That could occur if both riders were riding fast horses. Provided that the rider kept as close as possible to the bridleway that he had been forced to leave, I assume that there would be no prosecution. Of course, if the rider strayed across the field, he would come under the criminal law of trespass, which is a serious matter. I shall assume that if a rider leaves the bridleway to avoid one or even two riders coming in the opposite direction, there will be no prosecution. Were Ito be wrong, I am sure that my hon. Friend would have corrected me by now.

I could not be present for Second Reading of the Bill, so I am glad today to welcome it and to make a few brief comments before we send it on its way. The Bill attempts to reconcile the conflicts that occur between the different uses and users of the countryside. However, I wish to add a word of caution. We frequently have too great an estimate of the effect of the laws that we pass. It is all very well to define the rights of use of a footpath and the rights of a farmer to divert it for a particular period, but if one is walking along a footpath and, when about to cross a stile, sees a bull in the next field, there is no time to stop and find out whether the bull is safe, regardless of the farmer's assurance that it is. If the bull is unsafe, there is no time to start a prosecution.

Like the hon. Member for Birmingham, Hodge Hill (Mr. Davis), I spend most Sundays and holidays walking either in the countryside or in the mountains. When a footpath is diverted, most walkers are prepared to take a route round a field, rather than through it. However, the cause of ramblers is not helped by the minority who regard anyone prepared to walk round the field as—to use their phrase—a forelock toucher. They regard rambling as a perpetual opportunity to relive the mass trespass on Kinder Scout in the last century.

All who use the countryside are anxious to ensure that the rights of other users are respected. However—this touches upon the point made by my hon. Friend the Member for Ealing, North (Mr. Greenway)—the use of a footpath in one way might make it impossible for it to be used in other ways. There are many examples of that in my constituency. For example, the frequent use of a footpath by horses has made it unusable by human beings. However much the legislation defines footpaths and who is entitled to use them and when, it does not get round the problem that there are both selfish and unselfish uses. Users must always remember that others also wish to use the footpath.

As was pointed out on Second Reading, bike scrambling is an increasingly popular hobby, especially in the mountains. Last summer, I spent some time on the northern lakes and fells. Perhaps I may warn you, Mr. Deputy Speaker, that I am not about to use unparliamentary language when I refer to the fells across which I walked as Great Cockup—for that is their name. Lower down the fells was a group of mountain bike scramblers. Because of the remoteness of the area, and because they stuck to a defined route—having deliberately picked an area where they knew not many people were around—the noise and colour of that biking procession added a great deal to the day. However, I am equally sure that we have all seen examples—which are particularly common on the ridgeways—where the use of scrambling bikes on a well-used path detracts from everyone's enjoyment.

I conclude by saying to my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) that I greatly welcome the Bill, which I believe will do much good—but we should be wary of ascribing to it the change in motives and in patterns of thinking that will be necessary if it is fully to work.

2.9 pm

My hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) is to be congratulated on the way in which he has conducted the progress of the Bill. It has the Government's support, and I commend it to the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed.