New Clause 1 — Vehicular Access

Orders of the Day – in the House of Commons at 1:05 pm on 29th June 2006.

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'Section 68 of the Countryside and Rights of Way Act 2000 (c.37) shall cease to have effect.'. — [Barry Gardiner.]

Brought up, and read the First time.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss Government amendments Nos. 110 and 111.

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs)

The amendment repeals section 68 of the Countryside and Rights of Way Act 2000—the CROW Act—in line with the discussion in Committee. Amendment 111 is consequential; the long title of the Bill must itself be amended because section 68 applies to some land other than common land and town or village greens, so its repeal falls outside the scope of the present long title. Section 68 was enacted during the passage of the CROW Act. It was designed to deal with a problem that had arisen through case law for householders who accessed their homes by vehicle over areas such as commons or greens. Section 68 has now become redundant for legal reasons, and repealing it will avoid any mistaken impression that the section has a residual role. We consulted publicly about doing this and will publish a report in due course on the findings of that consultation.

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

I confess that I am puzzled by this group of amendments. Obviously I am very familiar with the debates that we have had on the issue of access over common land and village greens, and the work that was done by my right hon. Friend Mr. Mackay and others to try to resolve the problems, but I am puzzled about why it is necessary to abolish section 68 of the CROW Act. I hope that the Minister can clarify the reason.

I am very much aware of the House of Lords judgment in Bakewell Management Ltd v. Brandwood and it is my understanding that it is on that basis that the Minister has been advised that section 68 should be repealed. However, it has been put to me that if we remove section 68 and the possibility of being granted a statutory easement thereunder, we are in effect reverting to the old arrangements involving a ransom payment, which were precisely what section 68 of the CROW Act was intended to overcome, because, as a result of the repeal, the landowner might then be in a better position than before to make a charge for a house owner driving over the land to gain access to his property, and might take all necessary steps to stop an easement being acquired over it, in order to keep his options open. That was not the intention of the Government, or indeed the Opposition, when section 68 of the CROW Act was enacted and I do not understand why we need to repeal it now.

The Minister said that the section has become redundant for legal reasons, but we do not know what those are. Indeed, it has been put to me that there are no legal reasons for abolishing it. Not impossibly, a householder might actually prefer, notwithstanding having made a payment, to have the grant of a statutory easement under section 68 than to have it prescribed under common law, because of the problems of producing evidence of the use and of getting his title right. To remove that possibility is also unhelpful to householders.

It has been put to me that if we remove section 68, we are in effect reverting to what I understand was called the Hanning v. Top Deck Travel era—with the illegality bar removed—when, for example, a commercial company claimed to have acquired the prescriptive right to drive a double-decker bus over a common, but without being able to do anything effective about it. It is important to remember that section 68 was enacted precisely to address that sort of situation by providing that there should be no vehicular easement to drive over common land, except as provided by section 68. That is an important protection for common land. Why does the Minister want to abolish section 68? What is it about the case to which I referred—Bakewell Management v. Brandwood—that he believes makes it unnecessary?

The argument is that a House of Lords judgment cannot abrogate a statute that this House has passed; it can only interpret it. When we enacted section 68, the House decided that a payment should be made and that there should be no free easement in situations in which Parliament has resolved that there should be a payment. I do not think that anything has occurred to alter Parliament's view. Following that logic, section 68 is not redundant. The House of Lords does not have the power under the constitution to abrogate a statute. Section 68 of the CROW Act was, in any case, not a pleaded issue in Bakewell Management v. Brandwood. It was not even part of the case. The observations of the House of Lords in that reported judgment, as far as section 68 and the CROW Act are concerned, did not form part of the ratio decidendi—the argument at the end of the case. The contention is that section 68 is not therefore redundant. In fact, it constitutes the only means that the House has provided whereby an easement can be acquired to drive over a common. I hope that the Minister will come back with some more information as to why he believes that what he wants to do is necessary. We all agree with what we were originally trying to achieve, but I am unclear about why it is necessary to abolish section 68 to try to do that. By abolishing section 68, the Minister might be creating more problems than he thinks.

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs)

I am glad to have the opportunity to respond to the hon. Gentleman's questions, because it is important that these matters are clarified. The section and the regulations made under it were enacted because of the impact of the 1993 judgment known as Hanning v. Top Deck Travel. Before that case, it had been thought that home owners who had, for a sufficiently long period, driven across land such as common or green to gain access to their property had acquired a legal right to continue doing so by virtue of prescription or long use. The Hanning case held that that was not the position, on the ground that a legal right to continue doing something cannot be acquired by virtue of actions that involve committing an offence, and road traffic legislation makes it an offence to drive without lawful authority on land that is not a road. In the wake of that case, a significant number of householders around the country were asked to pay large sums of money to continue to drive to their own property over areas such as commons or greens.

Section 68 was brought about, late in the passage of the CROW Bill, to provide a means by which the payments necessary to secure easements for this purpose could be capped. I want to stress that. Section 68 was not enacted to prevent prescriptive claims of rights of way. It was enacted to cap any payments that, under previous case law, were required to establish an easement. The subsequent House of Lords ruling in the Bakewell Management case in 2004 overruled the Hanning judgment. It confirmed that in circumstances in which the owner of a common or green could, by granting permission to a householder, have made their use of the land for vehicular access lawful, there is no bar on the householder relying on their actual use, without such express permission, to establish the prescriptive right of access.

The reason for enacting section 68, therefore, has disappeared. Where long-standing vehicular use has taken place on land, it is usually the case that the landowner could have given permission for the use so as to prevent its constituting an offence. In such a case, the use would equally be sufficient to create a prescriptive right independently of section 68. If in a particular case, because of some other legislation, it would be an absolute offence to drive across a common or green or to do so in a particular way and the owner has no power under the legislation to grant permission for that use so as to disapply the offence, a right of vehicular use cannot be created at all. We believe that such cases are exceptional, but, where they arise, section 68 has never assisted a householder who has unlawfully been using the common or green for vehicular access and therefore its repeal will not make any difference to that position.

Even on village greens, where a residual role for section 68 was initially alleged following Bakewell, we have concluded that there is no circumstance in which the section can help a householder to regularise his use of a vehicular track to his house over common or other land. If the particular driving does not cause injury to the green and the owner of the land could lawfully give permission to drive over the land in the way that the householder has done in past, such use will have been capable of creating a prescriptive right under the Bakewell principle. We do not consider that any special provisions are needed for greens. Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 are both concerned with injury to the green. In our view, whether or not driving across a green in a particular way contravenes those provisions would be a matter of fact and of degree to be decided on the circumstances of individual cases. If driving does cause injury to the green, section 68 does not reduce the strict protection greens enjoy, which would prevent an easement from being granted at all. I hope that that clarifies the matter and satisfies the hon. Gentleman.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham 1:15 pm, 29th June 2006

I apologise to the Minister, because I have been troubling him quite a lot in the past few days, but will he clarify the situation of my constituent whose house is on the edge of a village green and who has created a driveway across the village green? Some years ago, before the CROW Act, he was in considerable difficulty, because the parish council nominally owned the green and was seeking quite a large sum of money to allow him the right of way. Would the fact that he has built a drive across the green constitute damage and would he get any relief from the changes?

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs)

I hesitate to pronounce from the Dispatch Box on an individual case without knowing the specific circumstances. If the hon. Gentleman cares to write to me with the specifics, I will do my best to give him a written response that may be helpful.

Question put and agreed to.

Clause read a Second time, and added to the Bill.