Daniel Rogerson (Shadow Minister, Office of the Deputy Prime Minister; North Cornwall, Liberal Democrat)

I beg to move, That the clause be read a Second time.

The new clause relates to an issue highlighted by a learned gentlemen who resides in the constituency of my hon. Friend the Member for North Norfolk (Norman Lamb). It would clarify the situation relating to people’s ability to access property surrounded by common land. I am not greatly familiar with the case that gave rise to the new clause, but I can see how such circumstances might be a problem in an area with no recognised roadway, where people have customarily crossed common land to access their property. The new clause would provide an opportunity to deal with that situation by having the parish council take on that right of way and ensure that it is maintained. Any issues about crossing the common land could be resolved in that way.

Helen Goodman (Bishop Auckland, Labour)

I am slightly puzzled, although I appreciate the practical problems. Surely the hon. Gentleman is not suggesting that what is at the moment a track that is used by one or two people who live beyond common land should be kept up by the local authority, involving all the costs of tarmacking and so on? Will he clarify that?

Daniel Rogerson (Shadow Minister, Office of the Deputy Prime Minister; North Cornwall, Liberal Democrat)

Certainly. I understand the hon. Lady’s point. The intention is that the matter should go to the parish council rather than the highways authority, so the track would not need to be adopted in the same way as a road. The new clause refers to

“persons gaining access to their property from the adopted public highway and by visitors to such property”,

so it would affect the track that links to the public highway, which does not need to be maintained as a highway. It is referring to a right of way, not requiring it to be tarmacked and turned into a permanent road. That is the intention of the new clause.

David Drew (Stroud, Labour)

I want to ask the Minister a question about the problem of easements, which I have mentioned on various occasions. I thought that we had clarified the matter under the NERC Act, following questions that arose from the Countryside and Rights of Way Act 2000. Can the Minister clarify that the new clause is not necessary, because what the right hon. Member for Bracknell (Mr. Mackay) achieved in that Act stands in primacy over this measure? I could be persuaded that we need to nail the matter down even more exactly, because it is a great problem in my area, and I expect that it also affects the hon. Member for North Cornwall and others.

Where there is a lack of clarity about rights of way—particularly vehicular rights of way—there should be some attempt to make it clear that people crossing common land have extant rights of way. That has become an issue in my area, where there is a dispute with the National Trust. There is an understandable demand for a body to take ownership of pieces of land, because some people have had difficulty in selling their property in the absence of clarification about their rights, particularly vehicular rights of way, and whether they should be paying the so-called owner of the land. I hope that the Minister can provide such clarification, so that I do not need to support the new clause.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

In direct response to the point that my hon. Friend has just made, I recall what we did in the NERC Act in response to the problem raised by the right hon. Member for Bracknell in respect of his constituents and others; the problem was not restricted to Bracknell. That problem related to people who sought to access their private property via RUPPs—roads used as public paths. Some of the changes that we made under that Act would have threatened their ability to use those RUPPs with non-mechanically-propelled vehicles, because they would have reverted to what would now be restricted byways unless those people put in claims in time to convert them to byways open to all traffic. Given that that section came into effect in January 2005, as a retrospective measure, that would have been rather difficult for them. We made an arrangement for them to have private rights of way to  their properties. That was not specific to common land; as I recall, it referred to access to all private property that relied on RUPPs.

It will not surprise the Committee to hear that we do not feel able to accept the new clause. It would turn what might, at best, be a private vehicle right into a public one, much along the lines mentioned by my hon. Friend the Member for Bishop Auckland (Helen Goodman). I imagine that even the home owners in question might not be particularly happy about that. The compulsory vesting of the land in question in the parish council, irrespective of who owns it now, is also a step about which we would be nervous.

We recognise that significant problems arose a few years ago, when home owners were being charged large capital sums to secure a legal right to drive over such land to their houses over commons, greens and the like. That problem arose because of the High Court judgment in the case of Hanning v. Top Deck Travel in 1993. That case seemed to indicate that home owners were unable to achieve prescriptive rights to drive to their homes in such situations under section 14(1) of the Road Traffic Act 1930—or, in the case of urban commons, after the passage of section 193 of the Law of Property Act 1925—because both statutes contain specific prohibitions on driving on such land. Quite a few landowners responded to that judgment by seeking payments from home owners for the privilege of continuing to reach their homes by car.

Faced with that wholly unacceptable situation, the Government enacted section 68 of the CROW Act 2000, to enable regulations to be made capping the amounts payable by home owners in such situations. Those regulations were made in 2002.

Happily, the House of Lords decided, in the case of Bakewell Management Ltd v. Brandwood and Others in 2004, that the original Hanning case of 1993 was wrongly decided. We would never have enacted section 68 of the CROW Act but for that case. Last year, we consulted on whether section 68 should be repealed. We took stock of the legal position, in light of the comments that we received, and we concluded that, in light of Bakewell, it is clear that section 68 serves no purpose.

We have a choice, and I am relatively relaxed about it. Indeed, hon. Members could canvass me on which way to go. We could leave section 68 extant, and possibly revoke the regulations that we made under it, as they no longer have any function. However, that might tend to perpetuate the confusion that has been all too apparent, as it might lead people to believe that section 68 had some residual purpose or utility.

Alternatively, we could use the Bill to repeal section 68. That would send the clearest possible message that the section is defunct. If the Committee favours the latter option, we are willing to table an amendment on Report to repeal section 68. I am sorry to have delayed the Committee with that explanation but it is a fairly complicated matter.

David Drew (Stroud, Labour)

I would prefer the second option, because we have only one legislative opportunity. If we want to make a clear statement about what should happen in  the real world, I suggest that we do so now rather than wait for separate, presumably secondary, legislation, which could be long delayed. That is my hint to the Minister.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

If the hon. Member for North Cornwall responds in the same terms, I shall table such an amendment on Report.

Daniel Rogerson (Shadow Minister, Office of the Deputy Prime Minister; North Cornwall, Liberal Democrat)

I am grateful to the Minister for giving the matter a great deal of time and thought. I am sure that other hon. Members who know of such problems in their constituencies will bring them to his attention. I beg to ask leave to withdraw the motion.