Clause 61 - Restriction on creation of new public rights of way

Natural Environment and Rural Communities Bill – in a Public Bill Committee am 9:45 am ar 30 Mehefin 2005.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

Photo of John Mann John Mann Llafur, Bassetlaw

I have had a good look at the clause and I am a little concerned about whether the proposals will do exactly what the Government intend. I would like to tease out the Minister’s intentions on that. I have spent quite a lot of time considering the clause in the context of the whole of part 6, and looking at what the problem is. I fear that we may end up unremittingly with the current wording. It is not the specifics of that wording but the design of the whole clause that is too harsh. It does not deal with the big problem.

In my constituency, and all over the country, the big problem is that we have lots of automatic upgrades from roads used as public paths to byways open to all traffic—from RUPPs to BOATs—going on because of an anomaly in previous legislation. The anomaly is best illustrated by my constituency because dozens of upgrades are proposed there. Under the anomaly in current legislation, in order to upgrade from what I shall call bridle ways as a generic term—although it is not always technically accurate—to a byway open to all traffic, which can be used by motorbikes, quad bikes, 4x4s and anything else people drive, people make applications based on historic rights. If someone can prove the historic rights, that is the sole definition under which the upgrade has to be judged. Nothing else is taken into account: environmental issues, changes in the countryside and crime and disorder issues are all put to one side. If the historic rights for a vehicle—which really means a horse and cart—can be demonstrated, an automatic upgrade will go through.

I am sure that the Minister, like his predecessor, will confirm that there have been debates on the matter on the Floor of the House. We have a group of people scouring historic maps to find where those rights are; I believe the legislation gives them a period of 25 years in which to do so. Large numbers of upgrades are taking place. I shall explain why my constituency is as good an example of the absurdity of this anomaly as is found anywhere in the country.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am, I suspect, in sympathy with the hon. Gentleman’s point but I am slightly puzzled as to why he is making it now. Clause 61 is about the future, and it precisely addresses his concerns. Clause 62—to which I have tabled amendments about commencement, which we shall debate at a later stage—deals with the point that he is making about the scouring of maps that is being done before the Bill is enacted.

Photo of John Mann John Mann Llafur, Bassetlaw 10:00, 30 Mehefin 2005

If I were happy with the hon. Gentleman’s amendments, I would have restricted my remarks to them and to the discussion on clause 62, but   I am not, as they miss the point. Hence, it is appropriate for me to make my comments on clause 61 because I am unhappy with it.

I am unhappy not with the Government’s intent, but with the consequences of the clause. The danger with the debate about the future date of commencement that the hon. Gentleman was attempting not to entice me into but to defer me to—of course, there is an issue there—is that its context is all or nothing. I am not and never have been interested in all or nothing. My constituents and I are interested in removing an anomaly. Therefore, I wish to tease out from the Minister whether the Government propose to remove the anomaly and do nothing else, because if the anomaly in the law is removed, my constituents and I will be happy. We will be happy because we know that if we could use all the factors to challenge anyone’s desire to upgrade, the applications in my area would be unlikely to succeed. The phrase “all the factors” includes environmental issues, other uses, current uses, changes in the countryside, the spread of urbanisation, crime and disorder issues and the opinion of the local population and of parish, district and county councils—they could all be brought into the equation.

I am not bothered whether someone can propose to upgrade a route, but I am bothered that such a proposal is judged solely on historic rights. If someone can put a coherent case for saying that there should be a route in my area for trail riders—to take one of the categories of would-be users—and the objections against it are spurious, I would be quite happy with it, but I am not happy about the fact that such routes are being determined on one anomalous issue.

With your knowledge of history, Mr. Forth, I am sure that you know very well why my constituency is a good example. Where did the King’s armies camp on their way to the battle of Culloden? They camped on Clarborough hill in my constituency, which just happens to be where many of the upgrade applications have been proposed. Why did the armies camp there on their way to glory at Culloden? Because the River Trent is forded in my constituency.

There are earlier precedents. Why did the Romans build a settlement at Littleborough in my constituency? Because in Roman times the River Trent was forded there. If one wished to go from Italy to Scotland, at some stage they had to get across the River Trent. The fact that Romans’ chariots used the route—it is called the great north road, and their presence can be proven—is sufficient to create an automatic upgrade for motorised vehicles today. Mr. Forth, I know that you are fascinated by my historic examples. I could give more, but I think that I have done enough to illustrate the absurdity of the current anomaly.

Strangely, on Clarborough hill and in Sturton, the village that has grown up alongside the route to the Trent at Littleborough, lots of applications have been made for upgrades. We are not talking about trail rides that cut across the country; when people go down these routes, they end up at the River Trent. Unless   somebody creates some kind of river-crossing vehicle to transport the bikes, they will be going there and then coming back. I have looked at many examples from across the country and I have received much correspondence, not all of it very polite, but this example illustrates probably better than any other the fact that I have seen the absurdity of the current anomaly. That anomaly needs rectifying, but the clause might not do that.

The issue is whether people will have the right to make other proposals. In that context, there is the issue of any delay in commencement. The words “after commencement” are included in the clause. The amendment tabled by the hon. Member for South-East Cambridgeshire should also have related to clause 61, because the issue of commencement means that the problem is that, as the applications are being made, timing becomes important.

The county council in my constituency says that current applications will take three or four years. There are many applications in my constituency—far more than the Department reports in its survey. It reports that there are nine in my constituency. Well, there are nine on Clarborough hill; there are many more in my constituency. The facts that the Government are using to make decisions are not accurate. There is already a whole series of applications in just that one small area of my constituency.

It is not trail riders who are using the routes; it is what might euphemistically be called youths on bikes, and the activity is sometimes organised. That is to say, a white van appears, a lot of youths get out and on to their bikes or quad bikes and charge round these routes, some of which are circular and make rather good race tracks. They, and not the trail riders who are trying to go from one part of the country to another while viewing wonderful scenery, use the tracks. We are talking about an organised business, with youths in particular going at tremendous speeds, scaring horses, causing great danger and damage, and terrifying walkers, dog walkers and people living in those communities. All hon. Members present can rehearse those arguments at great length.

I want the Bill to ensure that that anomaly is removed immediately and that current applications that have not been determined are not determined solely on historic rights. Will part 6 rectify that? Does it do more than that? Will it fully and comprehensively rectify that problem?

Photo of Tony Baldry Tony Baldry Ceidwadwyr, Banbury

Like the hon. Member for Bassetlaw (John Mann), who has made an excellent speech, I am unhappy. I hope that my hon. Friend the Member for South-East Cambridgeshire and the Minister can explain either in relation to this clause or the next one how they could make me happy. I am not the only person who is unhappy: there are also my hon. Friends the Members for Wantage (Mr. Vaizey), for Henley (Mr. Johnson) and for Witney (Mr. Cameron), the hon. Member for Oxford, West and Abingdon (Dr. Harris) and the right hon.   Member for Oxford, East (Mr. Smith). Indeed, all Oxfordshire Members of Parliament are unhappy about the way in which the Ridgeway is being treated.

The Ridgeway stretches about 85 miles from Overton hill in Wiltshire to Ivinghoe beacon in Buckinghamshire. It is England’s oldest green road and it dates back to the earliest days of agriculture and inter-regional trade in this country 6,000 years ago. Probably when the Romans were not heading up to the River Trent, they were going along the Ridgeway. It is an historic feature of European importance and, because of its upland location, it ought to be a site of great natural beauty.

The present state of the Ridgeway is unhappy. That is the result of a combination of factors, the most fundamental of which is the growth in the number and variety of motor vehicles that use the Ridgeway. That has exposed the ancient highway to a host of new pressures. In recent years, there has been a phenomenal increase in the number of off-road motor bikes and 4x4 motor cars. Those vehicles destroy the surface of the Ridgeway. In wet weather, huge sections of the Ridgeway become a sea of mud and deep puddles. In dry weather, the surface sets into a series of ankle-twisting, knee-wrenching ruts.

The Ridgeway is a species of common land; it is an important part of our national heritage. It is important in giving access to the countryside to walkers and others. It is a common asset, and one would hope that new Labour recognises the need to protect public assets as much as private property. I want to know how we are going to prevent motor vehicles from having access to the Ridgeway. I can see no justification for 4x4 vehicles trundling along the Ridgeway and it being churned up in that way.

Even as a lawyer and even with an interpretation clause, I find clauses 61 and 62 difficult to interpret. My concern is that we have been here before and we received promises in the consultation document, “The Use of Mechanically Propelled Vehicles on Rights of Way”. In that document, Ministers said:

“We propose to introduce legislation, which will make it no longer possible to establish the existence of a byway open to all traffic by reference to historic (pre-commencement) use by, or other evidence relating to, non-mechanically propelled vehicles”.

I, like the hon. Member for Bassetlaw, assume that that means the horse and cart. The consultation document went on to say:

“We propose to do this by introducing a cut-off date after which (subject to certain exceptions) any unrecorded rights of way for vehicles shall be recorded as restricted byways in the definitive map and statement

We propose that the cut-off date should be one year from the commencement of the new legislation.”

I tell the Minister that if that is what the Bill does, people in Oxfordshire will feel betrayed. People will be desperately unhappy because they want there to be no vehicular access along the Ridgeway. They can see no justification for the Ridgeway being churned up by 4x4 vehicles, trail bikes and so forth.

If the best the Government can do is say, “In certain other areas, if it isn’t already a byway open to all traffic, we can do something about it. But we’re terribly   sorry that if the Ridgeway has been used by vehicular traffic in the past, you’re stuck with such traffic for ever”, that is a real betrayal of the countryside.

If I am wrong and the Minister can tell me that he will ban traffic on the Ridgeway, there will be much rejoicing in Oxfordshire. Bells will be ringing in the village churches. If he is not, people will be deeply unhappy. This is an issue of real resonance in Oxfordshire. People, families and others want to go out to walk there. If one is taking one’s children or family out for a walk, it is disastrous if one is beleaguered by people racing up and down a natural feature of our countryside that was never intended for that purpose.

Photo of Madeleine Moon Madeleine Moon Llafur, Pen-y-bont ar Ogwr

The Bill is an opportunity for us to consider our past and our future. In many respects, we are trying to protect our past and heritage by protecting our natural landscape and our biodiversity. We are trying to recognise that there is a great danger that much that we have that is specific, precious and unique to this island could be lost unless we take responsibility.

At the same time, however, the clause seems to bring together that strange past of an England of horse and carts with today. We are trying to prevent the loss of biodiversity caused by our modern lifestyle, but we are not protecting it from one of the greatest causes of damage: the motor vehicle. We are not trying to limit access to the countryside.

I moved to Wales 30-odd years ago when my husband, who is an ecologist, became the first warden of what was then a local nature reserve but is now a national nature reserve and a European site of special nature conservation. We spent much of those early years battling against trail bikers on the reserve who carved up a precious and fragile landscape. Much as the hon. Member for Bassetlaw described, a white van would arrive and out would come the trail bikes, many of them unlicensed and uninsured, and off the bikers would go across the reserve.

In the Bill we are looking for sustainability, but we cannot sustain what is happening at the moment. We have tighter and tighter legislation and management of traffic on our roads, so many people are seeking their thrills and spills with their motor vehicles by going off road. They are carving up the countryside with their trail bikes, Land Rovers and so on to get the excitement that, thanks to speed cameras, they are no longer allowed to get by speeding along motorways.

We have said that the Bill must be cost-neutral and we are seeking to achieve that. However, in many local authorities the cost of examining applications for upgrading to BOATs is tremendous. The hon. Member for Bassetlaw described the number of applications in his constituency and the green lanes coalition said that many local authorities must consider a huge number of applications. That will not be cost-neutral. Like other hon. Members, I ask the Minister to explain how we can protect biodiversity, as well as those habitats that in other parts of the Bill we have clearly signalled our intention to protect, unless   we tighten up and include in applications for upgrading to BOATs other areas and other issues, including biodiversity and the impact on it.

Photo of Roger Williams Roger Williams Opposition Whip (Commons) 10:15, 30 Mehefin 2005

I support the clause because, while I applaud the work of the hon. Member for Bassetlaw in identifying an historic anomaly and of the then Minister, the right hon. Member for Cardiff, South and Penarth (Alun Michael) in his consultation, we all realise that to upgrade from a RUPP to a BOAT on the basis of historic use a long time ago, whether by the Royalists or the Romans, is not the right way to proceed.

My regret in the Bill is that we are not addressing the real issues, which is to put rights of way legislation in place so that we have a rights of way network for the 21st century rather than the 20th, 19th or 18th centuries. People’s needs, whether to get from one place to another or for recreation, have changed and we are using an out-of-date system to meet their needs.

I welcome the clause because, as the hon. Member for South-East Cambridgeshire said, it looks to the future. There are opportunities in the countryside for walkers, people who ride horses and people who use mechanically propelled vehicles. The question is, whether they are doing those things in a way that sustains the resource that they want to enjoy, or in a way that destroys it.

One can make a case that walkers cause a huge amount of erosion. In fact, one of the most costly exercises that was undertaken in the Brecon Beacons national park was to restore the path up Pen-y-Fan, which is the highest point in the Brecon Beacons. The erosion was caused entirely by walkers, and repairing it was hugely expensive. I can point to many such instances in my constituency.

Photo of Madeleine Moon Madeleine Moon Llafur, Pen-y-bont ar Ogwr

Has the hon. Gentleman considered other costs? Restoring a footpath to the top of Pen-y-Fan would be expensive, but one seeks to get people involved in healthy exercise and in visiting and enjoying the countryside. Has he compared the costs of footpath restoration with the year-on-year costs of restoring many other habitats because just one vehicle—not hundreds of walkers—has gone across a piece of land?

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

I take the hon. Lady’s point, but I am also making the point that all forms of access to the countryside bring problems. Indeed, the commercial use by pony trekking organisations of rights of way can cause a problem as well. One often sees on open countryside that pony trekkers have used a right of way but then have gone farther and farther away from it as it becomes impassable due to their use of it.

I look to this clause, which deals with people who want to access the countryside on mechanically driven vehicles, as a way forward. I think of a bank manager   who lives in Rhayader in my constituency. Three days a week he walks in the countryside, but two days a week he sets off across the countryside from Rhayader to Tregaron on his motorbike. He has his sandwiches on top of the hill or wherever, but when he leaves nobody knows that he has been there. Is he causing a problem in the countryside? No, he is not, but he is getting enjoyment from it. We should be making legislation that allows that to happen.

The other thing is that there is huge demand. If we say no to such people, all we do is create a pent-up demand that will break out somewhere. We must make provision. Clause 61 allows us to do that, but on the basis of what is and is not acceptable, rather than the historic anomaly that has been identified by the hon. Member for Bassetlaw and others.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

Like the hon. Member for Brecon and Radnorshire, I support clause 61 because it begins the process of stopping the anomaly that the hon. Member for Bassetlaw described—the fact that one can trace historic rights back to all sorts of previous things. Obviously, we shall discuss later how to adjust the process.

I am not sure that I am particularly proud that Richard Cumberland parked in my constituency, bearing in mind that he then went on to inflict the nearest thing to genocide that we have ever had in this country. Nevertheless, the hon. Member for Bassetlaw is right: it is absurd that somebody can use horse and cart or even chariot traffic in history to say that people ought to be able to use a route for four-wheel drives or whatever today. That is clearly daft, and I support the Government in trying to get rid of it.

I confess that I found the issue that the hon. Member for Bassetlaw addressed difficult to follow at times; my hon. Friend the Member for Banbury (Tony Baldry) made it absolutely clear. The issue is whether we set about retrospectively removing the right to use routes such as the Ridgeway, where the right is already established. That is not clearly addressed in the clause. Perhaps we shall discuss it at a later stage. No one has tabled an amendment, but it would have been helpful if someone had done so. I confess that I have not, but I hope that the Minister will address the issue when he responds. In any case, clause 61 as it stands is a significant step in the right direction.

I understand the comments made by the hon. Member for Brecon and Radnorshire on making provision for those who want to carry out certain activities on trails and so on, but the answer is that within the context of the use of land, not necessarily as a right of way but for commercial activity by farmers and landowners—

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.