Countryside and Rights of Way Bill

– in the House of Lords at 3:04 pm on 7 November 2000.

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On Question, Motion agreed to.

Clause 11 [Regulations relating to maps]:

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions)

My Lords, in moving the amendment, I speak also to Amendments Nos. 87, 94, 135, 189, 253, and 255.

These amendments and new clauses together deliver our commitment expressed in Committee to bring forward new provisions to give a statutory status to local access forums. In response to amendments tabled by the Liberal Democrat Front Bench, I indicated that we would bring forward such amendments. I believe that these amendments meet the objectives sought at that stage.

The amendments will place a duty on access authorities--that is, local highway authorities and national park authorities--to establish local access forums in their area. Forums will need to include a balanced representation of both users of the right of access under Part I and rights of way in general, and of landowners, managers and occupiers of land.

The intention is that in the implementation and management of the right of access and improvement of rights of way the advice of local access forums will be sought and due weight given to that advice. The amendments will require relevant decision-making authorities to have proper regard to forums' views in reaching decisions, for example in relation to draft maps, the imposition of by-laws, proposals for long-term closures of access land as well as on wider access issues contained in new rights of way improvement plans. In providing their views, local access forums will need to take into account relevant guidance issued by the Secretary of State or the National Assembly. The amendments demonstrate the central role which we intend that forums will play in advising on the operation and implementation of the new right of access.

Subsequent amendments deal with how that right will be dealt with. Amendments Nos. 253 and 255 are new clauses to be inserted in Part V of the Bill. They contain substantive provisions about local access forums. They press a duty on highways authorities and national park authorities to establish them. Amendment No. 253 provides for the new clauses on local access forums to come into force two months after Royal Assent. Amendment No. 255 introduces a general definition of local access forum into Part V for the purposes of interpretation.

Amendments 254 and 256 are tabled as amendments to Amendments Nos. 253 and 255. I shall listen to what is said on those amendments to my amendment. It might help the House if I were to indicate that in general terms I am not inclined to accept Amendment No. 254 but I am favourably disposed to Amendment No. 256. I beg to move.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, we are pleased that the Government have placed provisions for local access forums on the face of the Bill. We believed strongly that they were key to making Parts I and II effective. Many other interest groups--landowners, farmers, walkers and those with wildlife interests--are equally pleased that these provisions are now on the face of the Bill and that the Government have made a commitment to fund those forums.

Amendment No. 254 is a probing amendment to test in what circumstances the Government intend to use subsection (8). It would be unfortunate if some areas of the country were not covered by these forums. We wish to examine the criteria used by the Secretary of State when no forum is in place; and the criteria used whereby part of an area which is covered by an access authority has no forum in place. That might apply, for instance, to a large section of MoD land. However, even then it would seem reasonable to have a local access forum which might comment only occasionally as regards that area of land.

The amendment deleting subsection (9) is consequential on deletion of subsection (8). I am glad the Minister sees the sense of Amendment No. 256 which inserts,

"other interests especially relevant to that area".

There could be many such interests, which would vary from area to area. There might be particular wildlife interest groups in many areas, or the British Horse Society might want a representative if horse riders had had de facto access for a number of years. We are pleased that the Government are minded to accept Amendment No. 256.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, in accepting the idea that local access forums should be statutory, the Government must have calculated the extra cost to the taxpayer. At what cost has the amendment been accepted?

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I spoke in favour of local access forums in Committee. I thank the Government for coming forward with their proposals.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Labour

My Lords, I endorse Amendment No. 256, which would include,

"other interests especially relevant to that area".

I had some concerns about how the regulations for the appointment of people to local access forums were couched, referring to users and owners and occupiers. It will be very helpful to constructive debate if a wider range of interest groups are involved in local access forums, rather than just two groups that might be forced into polarised positions. I endorse the view that conservation interests would help to leaven the debate and would represent the important interests of conservation in the discussions of local access forums.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I, too, thank the Minister for coming back with a full and fairly long clause and for his other amendments, which we welcome. The Liberal Democrats led in this case, but we were happy to support.

Following upon what the noble Baroness, Lady Young of Old Scone, has just said, it is important that our approach is across the board rather than narrow. At earlier stages of the Bill we voiced our concerns that the owners or managers of land might not be included on the access forum, so I am delighted to see that they will be. In Amendment No. 253, the Government have recognised the needs of land managers, which will vary from area to area, and,

"the desirability of conserving the natural beauty", of the countryside.

The noble Baroness, Lady Miller of Chilthorne Domer, also referred to areas where there will not be local access forums. In Committee we argued that some areas might not want to adopt that approach to start with but would grow towards it. In the meantime, if there are no local access forums in some areas, how do the Government envisage the relationship continuing? I do not think that I have missed the answer to that point in the amendments. I am grateful to the Minister for coming forward with the amendments, but I should like answers to those important questions.

Photo of Lord Renton Lord Renton Conservative

My Lords, I am glad that the Government have tabled the amendments, as far as they go. Amendment No. 253 seems to be the operative one. Subsection (6) specifies the points that a local access forum shall have regard to in carrying out its functions. The first is,

"the needs of land management".

That is splendid. The second is,

"the desirability of conserving the natural beauty of the area ... including the flora, fauna and geological and physiographical features of the area".

The last one is,

"guidance given from time to time by the Secretary of State ... or the National Assembly for Wales".

Those are words of limitation. If local access forums find that giving access by night is causing a problem, will they have a way of overcoming it?

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions) 3:15, 7 November 2000

My Lords, I am grateful for the support around the House for the amendments, which address the concerns expressed at earlier stages. In response to the noble Baroness, Lady Carnegy of Lour, I gave some indication of the overall costs of the management of access and rights of way that would probably be incurred with or without forums, but the specific funding allocation for local access forums will be broadly £1 million a year.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, does that include the extra cost of making the forums statutory, or is there no extra cost? I may be asking an invalid question.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions)

My Lords, in a sense the answer is yes. Given that there is to be a requirement to have access forums rather than their being one way of dealing with the management and representation of all interests, I guess that the £1 million represents the additional cost. There will be other costs associated with the process, which I have already referred to.

The noble Lord, Lord Renton, asked about Amendment No. 253. Local access forums--I think that we all agree that that is the appropriate plural--will not have executive power, but they will be able to raise any problems that arise with the access authority and the Countryside Agency. That could include specific problems relating to access by night. However, they would not be the decision-making body on that issue.

On Amendment No. 256, we have left the detailed requirements of membership to regulations, but I accept that we need to ensure that the forums are representative of a cross-section of interests and do not end up being polarised between users and landowners. For them to operate properly, other interests will have to be represented. I appreciate that local interests will be particularly relevant in certain areas and circumstances. To put the matter beyond doubt, we shall not leave it to regulations and will accept the amendment as it stands.

On Amendment No. 254, however, we consider that there will be circumstances in which particular authorities will not need to be under a duty to establish a local access forum. Subsection (8) of Amendment No. 253 allows the Secretary of State to exclude them by direction. A specific decision to exclude such areas will be required, not the other way round. There will not be a presumption that there will be no local access forum until one is set up. We have included that provision because there may be some metropolitan boroughs with no open country and very few recreational rights of way. In those areas, it would be an inappropriate use of resources to require the establishment of a local access forum. It will be for ourselves and the Countryside Agency to listen to the views of those authorities. But there will clearly be some urban authorities where rights of way are minimal and access non-existent. If two or more authorities set up a joint forum, it might be appropriate to exclude the operation of the duty from some highly built-up parts of the area. That is unlikely to apply in many areas, but we would need to exclude them on the basis of a direction.

With that explanation, I hope that the noble Baroness will not pursue Amendment No. 254. I shall accept Amendment No. 256 when we reach it.

On Question, amendment agreed to.

Clause 13 [Occupiers' liability]:

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions)

My Lords, in moving Amendment No. 72, I wish to speak also to Amendments Nos. 73 and 77, also standing in my name. We start from the principle that walkers principally are responsible for looking after their own safety and that landowners and occupiers should not find themselves bearing liability for the foolish actions of people who exercise the new right of access. On that, I believe there is universal agreement around the House.

That is precisely why we reduced occupiers' liability to the very low level owed to trespassers. And, further than that, that is why we removed liability in respect of all natural hazards. That represented a fairly fundamental shift in the level of occupiers' liability and was intended to reflect precisely the effect of the new rights. Therefore, we have balanced the new rights with a reduction of liability across the board. In some cases, where there are particular dangers or features which may be beyond the landowner's control, we have excluded liability altogether.

Indeed, on that latter front we intend to go further with these amendments by removing liability. Amendment No. 73 has the effect or removing liability in relation to personal injuries suffered by people who climb over or pass through a wall, fence or gate except by the proper use of a gate or stile. That responds to the concern expressed by landowners that problems were bound to arise with people hurting themselves when climbing over man-made features, such as dry stone walls. We do not believe that the courts would be likely to hold landowners liable in such cases. However, we accept that in this litigious age some people may try to bring cases. Therefore, we wish to extend the exclusion from liability to such occurrences.

Amendment No. 73 deals with liability in respect of rivers, streams, ditches or ponds, whether or not they are natural features. That again addresses conservation interests and concerns expressed by landowners that occupiers should not bear responsibility in relation to such features, even when they have been made or changed by man. In particular, we accept that it would be very difficult to tell whether a pond was man-made or natural.

New subsection (6C) retains a minimal liability where an occupier does something which creates a danger on his land with the intention of creating that risk or is reckless as to whether or not such a risk is created. I am sure that noble Lords will agree that this safeguard is sensible and reasonable, especially now that we have widened the list of items excluded from trespassers' liability to include some man-made ones. In this context, I think of cases where a landowner has deliberately done something to put users of the new right at risk.

Government Amendment No. 77 gives further comfort to landowners in that it provides special guidance to the courts in assessing what, if any, duty remains to be owed by occupiers to those who exercise the right of access. The provision requires the court to have regard to the particular importance of not placing an undue burden, whether financial or otherwise, on the occupier. It also requires the courts to take into account the need to maintain the character of the countryside, including features of historic, traditional or archaeological interest.

We want to make clear that we do not wish the countryside to be littered with forests of signs and miles of fences. Therefore, the landowners' responsibility in that respect must have regard to these wider issues and to any code or guidance. The court must also have regard to any code or guidance issued by the countryside bodies; for example, it must take into account that walkers had been warned by the code to inform themselves about hazards.

I believe that the Government have moved substantially to recognise where the issue of liability could become a serious problem. We have reduced the overall liability; we have excluded liability from areas where unintentional danger could be at its height; and we have given that guidance to the courts. Therefore, I believe that we have gone a long way towards recognising the genuine concerns of landowners in this area.

I shall come to the other amendments in the group shortly. However, I do not believe that we should go further, and I certainly do not believe that we should accept, for example, Amendment No. 74, which effectively would exclude all liability on access land. We have constructed a balance by reducing general liability and have gone further in the landowners' direction. I do not intend to go further than we have done with these amendments. I beg to move.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, if the government amendments are accepted--and, at least in a modest way, we are grateful to the Government for bringing them forward-- a two-pronged situation would arise. First, in certain respects, the Bill will wholly exclude a duty in respect of certain natural features on the land and in respect of certain waters and gates, etc, when they are being used properly.

Secondly, by reason of Amendment No. 77, in other cases where the duty is not wholly excluded, the court will have to perform a balancing act to decide whether or not there should be a duty. In performing that balancing act, the court would take into account the factors set out in Amendment No. 77; namely, whether the existence of a duty would place an undue burden on the occupier, and the importance of maintaining historic features as set out in the code.

I fully acknowledge that these amendments improve the Bill. As I said, we are grateful for that. However, they still leave considerable problems. It must be remembered that it is more important to an occupier that the prospect of claims is eliminated rather than an offence is created, in pursuit of which he will probably succeed at the end of an expensive trial. Where the duty is wholly excluded, there can be no claim. But where, as in the second part of Amendment No. 77, the question of whether or not there is a duty depends on the view which an individual judge takes of the balancing between those factors and, presumably, the interest of the plaintiff in receiving compensation, then the occupier is faced with a trial.

No one can know what view the judge will take until all the circumstances have been investigated. Therefore, the occupier will be faced with the prospect of a trial, probably at the suit of a plaintiff who is not good for the costs even if the defence succeeds. Inevitably the occupier will be under strong pressure to pay something in order to get rid of the claim rather than to incur costs which he will probably not get back. In addition, of course, he will face the risk of losing. For that reason, the aim of the Bill should be to exclude a duty. If a discretionary duty remains, that still imposes a substantial burden on the occupier.

I venture to suggest that there are two unsatisfactory features in Amendment No. 73. First, the amendment only exempts liability for a gate except by proper use of a gate. Let us look at the scenario where a gate is on access land but is never used by the occupier. It is of no use to him because it is not situated on a route that he now needs to take. Therefore, the occupier does not need to repair it. A man exercising his access right opens the unrepaired gate which then falls over and injures him. In one sense, the man is using the gate properly, but the occupier has no need to use it. I ask the noble Lord to explain why the occupier should have to repair that gate--a gate which he does not use and which he will put into repair only for the benefit of people who exercise access rights.

The second defective part of Amendment No. 73 relates to features other than gates and waters. The amendment exempts liability only for natural features, which are closely and narrowly defined, and are such items as trees and shrubs. I suggest that the proper exclusion should apply to anything which is on the land, at least if it is there in the ordinary course of the use of the land--a shed that the farmer has put up for his use. I am prepared to concede that there should be no exclusion where there is something very odd on the land such as a rocket site or something like that. But liability should be excluded in relation to the ordinary features that one would expect to see on land of this kind, whether or not they are within the definition of "natural" contained in the Bill.

My Amendment No. 75A seeks to enlarge the list of matters so as to achieve that result. It exempts liability for all houses, buildings, erections and so on which were constructed or retained on the land for the purposes of any natural use of the land--farming or whatever it may be.

The main difference--and this is something which only transpired in conversation with the Minister, for which I am grateful--is that I have included there, as one sees, houses and buildings and so on. The Minister said in Committee that there is no need to exclude buildings because they are already excluded. On investigation, that refers to the fact that by virtue of Schedule 1(2), land with buildings on it is excluded from being access land, but that is a wholly different point.

Let us take the case where, in the middle of some access land, there is an old and attractive barn or byre which is not much used and which is, therefore, out of repair but which it would be a sad pity to see pulled down. Some young people exercising their access rights may go into the barn and get hurt. They sue, admitting they were trespassers but claiming that there is a duty, as there is, under Section 1 of the Occupiers' Liability Act 1984.

If buildings are included in Section 13 exclusions, then the simple answer is that there is no duty. But if they are not so excluded, then there is an arguable case which has, as I say, to go to trial and, in fact, would probably be settled.

The Minister suggested that that is no different from the situation as it is at present. If somebody gets into that barn now, he has the rights conferred on a trespasser. But with respect to the Minister, his point is not right. First, there is the practical point that, without the access rights, it is very much less likely that anybody would be there. But, secondly, there is the legal point that under Section 1(3)(b) of the Occupiers' Liability Act 1984, in deciding whether or not there is a duty, the court must have regard, among other things, to the likelihood of somebody being there.

Before access was conferred, there was very little likelihood of anybody being in this barn in the middle of this moorland. But now access rights are given, that likelihood has greatly increased. Therefore, the liability of the occupier has, both in practice and in law, been increased.

In my respectful submission, it is vital that that liability is excluded. It is extremely important that we stick to the wording of the Bill which exempts the owner of access land from all relevant claims by someone exercising the access rights, whether or not the incident occurs on access land or in a building immediately adjoining it. I stress that the real worry is that of a claim being brought, and not the ultimate outcome of a claim.

I venture to suggest to the Minister that if he does not accept that point, he is pressurising the occupiers to pull down elderly buildings for which they have no great use and certainly cannot afford to repair, which would surely be a sorry pity. Therefore, I hope that in spite of the somewhat intransigent remarks of the Minister that he was not prepared to go any further, he will, on hearing my explanation, see the force of the point and be minded to include buildings and other ordinary features of the landscape which have been put there in the course of the normal development and use of that land and which it would be a pity to see removed.

Photo of Earl Peel Earl Peel Conservative 3:30, 7 November 2000

My Lords, I start by thanking the Minister for having at least come some way towards dealing with this very thorny question. In that regard, I declare an interest in that the land that I own will be subject to access and, therefore, liability will have a direct effect on me personally.

I was a little disappointed that the Minister has already rejected my amendment before even listening to the arguments that I am going to advance. But having said that, I hope that he will listen carefully now because, like the noble Viscount, Lord Bledisloe, I have something to say on this subject.

I was extremely interested in what the noble Viscount, Lord Bledisloe, said and particularly his legal interpretation of Amendment No. 77.

In speaking to Amendments Nos. 74 and 76, perhaps I may make the following comments. Clause 13 currently exempts occupier from liability for the safety of walkers on access land in relation to "natural features of the landscape". Government Amendments Nos. 72 and 73 extend that exemption to include certain man-made features such as stiles and gates. But as the noble Viscount, Lord Bledisloe, said, there is the caveat that that applies only in circumstances where those are not being used properly, whatever that means. The difficulty is that there will be quite a number of gates and stiles which the owner will have put up, perhaps for his own use, which are not suitable for use by people exercising their rights of access. Is it really, therefore, right and proper that they should be, under the law, made to put those into a proper state to allow people to use them while exercising their access rights? That really is carrying the question of liability far too far.

Furthermore, as yet, government amendments fail to exclude liability in relation to other hazards likely to occur on access land.

As a starting point in examining how those provisions need to be improved, it must be said that the law of occupiers' liability is complicated. The provisions in the Bill, unlike those in the Occupiers' Liability Acts, do not result from careful consideration of the issues by the Law Commission, but from the very real need to resolve the liability problems inherent in the Government's original proposals, as highlighted by the Country Landowners' Association, of which many of your Lordships will be aware.

In trying to sort out the problems associated with the liability regime for access land, the Government have created an entirely new category of occupiers' liability--that for non-natural features, a point mentioned by the noble Viscount, Lord Bledisloe. That brings in its train all sorts of problems, as I shall try to explain.

The precedent before this Bill, both in statute and in case law, has been that liability is not imposed on the occupier for the state of the land where access is of right. As an example, users of highways are specifically excluded from protection under the Occupiers' Liability Act 1984. Such an approach does not remove the occupier from liability for hazards recklessly created, or for negligent activities. What has been recognised, however, is that it is inequitable to place liability upon an occupier when that occupier cannot control access. That is a very important point.

Indeed, an occupier can owe a duty to a trespasser under the Occupiers' Liability Act 1984. However, the occupier can exclude the trespasser, fence his land or ask the trespasser to leave. In those ways, the owner can require the trespasser to take himself away from a hazard on the land, so reducing the risk of an accident. None of those things can happen where access is as of right, as under the provisions in this Bill. In other words, the owner cannot require someone to leave the land in the interests of his own safety.

Looking at Clause 13, as drafted, there appears to be no logical justification for the division between natural and non-natural features. Many non-natural features are immovable, fixed features, that are longstanding and form part of the landscape. Indeed, features such as dry stone walls often give the landscape the very character which is so valued by the public.

As an illustration of that point, mines--other than mines for coal, ironstone, shale or clay--dating from before 1872 are exempt from the requirements of the Mines and Quarries Act 1954 to have an efficient enclosure, barrier, plug or other device to prevent any person accidentally falling into the mine or entering its outlet. That means that the obligations under the Act do not apply to the several thousand lead and tin mines which were abandoned in moorland areas before that date. Such old mines--some may be medieval or even Roman--form part of the landscape and have not been used in generations for any form of profit-making activity. However, under the Bill, liability could attach to the occupier for an accident in such a mine on access land.

In case there should be any doubt about the extent of these mine workings in upland areas, perhaps I may cite the example of one recent estate audit in the Pennines by the surveying firm Wardell Armstrong. That identified 136 lead mine entrances. During the survey, several previously unrecorded entrances were also discovered. If, as I suspect, those lead mines were abandoned before 1872, the owner is under no duty at the moment to fence them. I believe that the experience of this one estate could be widely replicated, particularly in the North East and South West of England and in Wales.

Presumably, the justification for imposing upon occupiers the new liability for non-natural features is that it is a prudent way to ensure public safety. However, the argument fails on two grounds. First, why should occupiers, who have not invited parties on to their land, and who have no control over the entrants, bear liability for their safety, particularly where no compensation is payable under the Bill? Secondly, as we know, open country comprises about 4 million acres of land. Such land will be occupied by a wide variety of owners, each with differing opinions on the steps necessary to fulfil any obligation on their particular piece of land, and differing resources available to meet any such obligations. Some occupiers may fence the hazards; some will only insure; many will simply not have the resources to take either step. How can that approach be seen as a suitable way to ensure public safety? I believe that, overall, the better approach is to follow legal precedent and remove liability from occupiers for all features of the landscape as my amendments propose.

As a final point, there is another problem with the present clause, which I am bound to say is not covered by my amendments but which I believe should be highlighted. Under the provisions of the Mines and Quarries Act, a quarry, whether working or otherwise, can be defined as a statutory nuisance under the Environmental Protection Act 1990 if, first, it does not have a properly maintained barrier to prevent persons falling into it, and, secondly, by reason of its accessibility from a highway or place of public resort, it constitutes a danger to the public. There are many thousands of quarries on land which will become subject to the new right of access. Many of those will not have been fenced to date because they are far away from the nearest highway. However, as soon as the right of access comes into force, they will automatically become potential statutory nuisances because the public will have a statutory right to walk around them.

My amendments would exempt occupiers from liability in relation to these quarries under the Occupiers' Liability Act. However, they would not prevent a local authority taking the view that the quarry amounted to a statutory nuisance. The owner could be faced with enforcement action; for example, he could be required to fence the quarry. I urge the Government to consider this potential problem and to table their own amendment at Third Reading to exclude that possibility.

Overall, the occupiers' liability regime set out in the Bill is deficient. New liabilities will fall on owners unless the Bill is amended. Owners will be put to considerable cost to minimise the risk of accidents and of claims from walkers. That costly action could include undertaking audits of hazards; undertaking risk assessments in relation to those found; fencing hazards; erecting warning signs and taking out additional insurance. In addition, an owner is not entitled to fence common land without the express permission of the Secretary of State. As regards quarries, as I have mentioned, enforcement action by local authorities is a real risk. It is surely wrong for the Bill to expose owners to those risks and expense; for example, in relation to thousands of mines and quarries spread across millions of acres of access land.

I believe that this section of the Bill must be amended in order to allow for a fair and equitable arrangement to be reached which would not impose considerable costs on owners who are being subjected to new access provisions which they did not initiate. The Government brought in this legislation. I believe that it is only right and proper that the Government should remove liability on occupiers for any expense on liability which is caused by the access provisions in the Bill. I beg to move.

Photo of Lord Greaves Lord Greaves Liberal Democrat 3:45, 7 November 2000

My Lords, I shall speak to Amendment No. 72 moved by the Minister and the other amendments in the grouping. I shall speak also to Amendments No. 73A and 73D, which are amendments to the main amendment. My noble friend Lady Miller of Chilthorne Domer will speak to Amendments Nos. 73B and 73C.

I welcome the fact that, to a degree, the Government have moved on the question of occupiers' liability in relation to Part I of the Bill. That is welcome. However, along with the noble Viscount, Lord Bledisloe, and the noble Earl, Lord Peel, I do not think that the Government have moved sufficiently far. I shall speak briefly to the amendments tabled by the noble Earl and the noble Viscount. If I start to speak gibberish, it is because I have spent seven and a half hours trying to drive down the M1. I then had to fight my way into the building through a demonstration and am feeling somewhat shell-shocked.

I substantially agreed with the comments made by the noble Viscount, Lord Bledisloe, on his amendment. However, I have difficulty in understanding the wording, and at this stage could not support it. I do not understand what it means, but perhaps that can be discussed. In Committee, I stated that in general terms I supported the amendment moved by the noble Earl, Lord Peel. Since then, nothing has been said by the Government to change my view. Other things being equal, I am still disposed to support that amendment. Indeed, I agree with everything said by the noble Earl. I shall not repeat that, but merely state the position. It seems to me that there is probably majority support in this House for the Government to move further on this matter. I hope that they will reflect on that and come back to it at Third Reading.

Amendment No. 73D refers specifically to activities which in general terms I shall refer to as "climbing". In Committee and since, those of us who are interested in climbing welcomed the fact that climbing and ancillary activities are included within the scope of Clause 2. Nevertheless, there has been increasing concern that the Government have not yet understood the relationship between people engaging in climbing, abseiling and so on, and the owners of the land on which they climb.

I had considerable discussions in relation to these amendments last weekend with senior people in the British Mountaineering Council--the national representative body for climbers in this country--and my amendments were tabled with its full support. They also meet with the support of the Country Landowners' Association. At an earlier stage a joint letter was sent by the BMC and the CLA effectively asking for an amendment on the lines of Amendment No. 73A.

Rock climbing is an inherently dangerous activity that people undertake voluntarily and deliberately in order to pit their skills and abilities of various kinds--athletic, technical and psychological--against the natural environment in which they find themselves. That applies whether we are talking about rock climbing on a short gritstone outcrop in Derbyshire or mountaineering in high mountains.

There is a general principle among the climbing fraternity that the risk of climbing belongs to the climbers themselves; that it should not be the responsibility of owners and occupiers unless they behave in a reckless way, and the government amendment now covers that. Clearly, if someone pulls down ropes while someone else is climbing, they are committing a criminal offence because people's lives are being put at risk. But in general the principle is that the risk in climbing should in no circumstances be the responsibility of the occupiers of the land. Indeed, if it was thought to be their responsibility, climbers would not have access to a lot of crags and cliffs which they presently have access to by voluntary agreement. It is the view of the climbing community that that principle should be embodied in the Bill.

There are growing problems of what I call "irresponsible" litigation, encouraged by lawyers offering to take up cases on the basis that they are paid only if they win. It is a tendency spreading from the United States of America and one which climbers generally want stamped upon. It would therefore be helpful if climbing as an activity, or the crags upon which climbers climb, were exempted from any liability under the Bill.

Another danger is that if landowners and occupiers believe that they have a liability, they may remove some of the features put in place to enable climbing to take place; for instance, posts at the top of crags for people to tie themselves to for abseiling and so forth. Owners may believe that, if they have given express consent to the placing of apparatus or even tacit consent because they are aware that the gear is there, if there is an accident resulting from the failure of that material they may be held responsible.

So these amendments contain three approaches. All three together would be extremely beneficial, but any one on its own would be valuable. First, Amendment No. 73A seeks to apply to rock features the principles set out in the government amendment in relation to water features. Amendment No. 72 says,

"any river, stream, ditch or pond whether or not a natural feature".

Amendment No. 73A asks for the same principle to be applied to rock features. Indeed, many crags in this country can be walked upon. Some have obviously been quarried in the past but some are absolutely natural. And it is difficult to tell the difference between the two. At the extremes one can say "Yes, that has definitely been quarried" or "That looks as though it never has been". I would love to take noble Lords along Stanage Edge in Derbyshire, which is the biggest of the gritstone edges and is used by over 1,000 rock climbers. Some of it has been quarried for millstone, some for local building materials and some is completely natural. Not including manmade rock features in the Bill will produce a can of worms. It is a simple amendment and the one which the climbing community would most like the Government to accept.

Amendment No. 73D applies to climbing as an activity. It simply says that if people are on the land climbing, any accidents that occur as a result are not the occupier's responsibility. That is the position that climbers want and it would be a simple matter to write it into this Bill in relation to access land. The second part of Amendment No. 73D relates to climbing posts and other climbing apparatus. Noble Lords will be astonished at some of the devices climbers use basically to make the crags safer and climbing possible. But many of those devices over a period of time become unsafe. There is a general acceptance within the climbing world that if one uses bolts which have been drilled into a crag in the past--that happens in limestone areas--or an old piton (what climbers call pegs) that has been banged into a crack in the past, or a post at the top of the crag which was put there for people to belay on, to tie themselves to or abseil from, one does it at one's own risk. It is our responsibility to check every time we use it that it is in a satisfactory condition for use.

The danger is that if occupiers of land give consent to the placing of apparatus, or even tacit consent by not removing it, and it turns out to be defective and somebody is hurt or even killed because they used that defective apparatus, unless the liability is specifically taken away from the occupier and placed squarely upon the climber, occupiers will remove such apparatus from the climbs. That will make climbing impossible and thereby undermine the aims of this Act.

Amendment No. 77 contains wording which is causing concern. It says,

"where the danger concerned is due to anything done by the occupier ... with the intention of creating that risk".

The worry is that that wording could be used against an occupier if he did things in, on or around a piece of rock which in itself made climbing possible. If it is not possible to climb, there is no risk. But, for example, if a path is dug at the top of a crag and access for climbers is made possible, there is a danger that the wording of the amendment could imply that, not only is the occupier liable if there is an accident, but that he actually created the conditions for the accident in digging the path. I am not sure that that is the most serious point being put forward but it is the worry.

I ask the Government to look seriously at these amendments. They relate to a specific activity which is undertaken by perhaps hundreds of thousands of people in this country. It would be a shame if the rights applying to climbers given under Clause 2 of this Bill were not able to be applied properly because of the fears of landowners over liability. It would be an even greater shame if, because of that, there was a spate of litigation or two or three cases which set litigation in train. That in turn may create a climate of hostility and prejudice between occupiers and climbers. At the moment the climate in many areas is one of co-operation and friendship.

Photo of Baroness Mallalieu Baroness Mallalieu Labour 4:00, 7 November 2000

My Lords, I welcome the Minister's amendments and recognise how far the Government have moved on this topic. However, notwithstanding the robust way in which he introduced his amendment, will the Minister reflect on whether the balance is right? It seems that in Amendment No. 73 the Government have accepted that occupiers' liability should be removed from some non-natural features. Those set out appear to be either boundary or perimeter features.

We would all accept that a landowner should be liable where he creates the problem, but the noble Earl, Lord Peel, pointed to a real difficulty. Indeed, some real problems would remain if the Government's amendment were accepted. Mention has been made of some non-natural features which are likely to cause problems, in particular the disused quarries, the mineshafts, of which there are a great many, and, as regards the amendment tabled by the noble Viscount, Lord Bledisloe, buildings such as old barns. All those features are likely to prove a magnet for children and the Government should have that uppermost in mind.

At present, there is no duty on landowners to fence mine entrances if they were abandoned before 1872, as many were. The Bill, if it becomes an Act in this form, is likely to impose a duty on those landowners to fence, or otherwise fill in, what would seem to be an enormous number of possible hazards. Under the Bill as it stands, the costs would be borne by the landowners.It cannot be right to leave such features, which were not created by landowners and which are not being used by them for the purposes of managing their land, to become a serious problem and expense for them. Even if the Government believe that the amendment tabled by the noble Earl, Lord Peel, goes too far, surely, there are ways in which such clear hazards could be exempted from occupiers' liability. I hope that the Minister will not close his mind to what is said in the debate.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, as usual, the noble Baroness, Lady Mallalieu, briefly and clearly made several important and cogent points. The noble Lord, Lord Greaves, made a long and detailed speech, although I should have thought that paragraph (c) of Amendment No. 73D, proposed by the noble Lord, was unnecessary because rock, snow and ice are natural features. I would not have thought that climbing over them was different from climbing over a wall or a gate. I may be wrong and the Minister will probably comment on it.

Amendment No. 73 makes no mention of hedges. Are thorn hedges, many of which have been planted and through which people may push and be injured, natural features if they have been planted comparatively recently? The Minister may also wish to comment on that.

Furthermore, what about boggy areas which have been created by occupiers in response to government grants for the creation of wetlands? A great deal of such work has been done recently. Those points need to be taken into account.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Conservative

My Lords, perhaps I may add one or two points for the Minister's consideration. What is the landowner's position when he has an interest in a construction which does not belong to him? I am thinking in particular of electricity supply lines and water leaks, which occur in considerable numbers in access areas, particularly mountains. Although it is not immediately obvious that they pose a hazard, accidents can occur. Storms can bring down electricity supply lines and people can come into contact with them and suffer as a result. The same applies to leaks which during the day are obvious and can be avoided, but problems may occur as a result of night access. I am concerned about the occupiers' liability when they may not own the construction but when a rental may be payable to them.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I am grateful to the Government for edging towards a more equitable situation than that which we discussed in Committee. The Minister spoke reassuringly about constructing a balance. Having listened to today's debate from all around the House--contributions coming from the noble Lord, Lord Greaves, the noble Baroness, Lady Mallalieu, and my noble friend Lord Peel--it appears that an unsatisfactory balance has been achieved.

However, it would be wrong for us to believe that the Minister was right in saying that we should be achieving a balance. People are being given the right to roam often against the wishes of owners and occupiers. Correctly apportioning liability in that respect is not a question of balance but of fairness. That is totally different. It is not a question of what is right for the person gaining access but of whether that is fairly balanced as against the landowner.

The landowner will undoubtedly be prejudiced by the Bill. As it stands, he will be faced with the dilemma of incurring additional costs in order to fence off old mine shafts, pull down buildings and reorganise his land in order to minimise the liability to which he might be exposed. The Minister ought to take the proposal away again because I do not believe that the owners or occupiers should be faced with additional liabilities as a result of the provisions of the Bill.

I want to ask the Minister a particular question. What advice has he received from the Countryside Agency on this issue?

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, we on these Benches welcome the Government's Amendment No. 73 and believe that it has helped the situation. However, what will be the effect if, as we discussed on the first day of the Report stage, the 20-metre curtilage around a house is reintroduced? Is the proposal contained in the amendment of the noble Viscount, Lord Bledisloe, necessary? If we were also to create a curtilage around buildings, would liability issues arise because no one should be around the building? Unlike some other noble Lords, I believe that we are nearly there.

I should like to speak to Amendments Nos. 73B and 73C. While they may appear to raise small points, at the moment Amendment No. 73 makes provision only for people who pass over or through the items listed. However, they may pass by a fence, perhaps carelessly, and have a nasty accident. Further, small people may pass under items. Although this may appear to be a matter of semantics, if one argues liability in court the fact that some of these words are excluded is important. We believe that it is much simpler to refer to any injury from these items.

As to Amendment No. 73C, the list of items from which people may suffer injury when crossing a boundary excludes, for example, bridges or stepping stones over water. In the areas with which the Bill is concerned water will form a good number of boundaries. Cattle grids are also common items on which it is easy to slip and break an ankle. We believe that there is good reason to include our wording in these amendments.

Photo of Lord Monro of Langholm Lord Monro of Langholm Conservative

My Lords, before the noble Baroness sits down, will she clarify her party's view on whether quarries and mine shafts should be fenced?

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, I agree with the observations of my noble friend Lord Greaves about rock features, to which I need not refer again. As to mine shafts, the noble Earl, Lord Peel, raised some interesting points. I shall listen carefully to the Minister's reply and give the matter further thought.

Photo of Baroness Byford Baroness Byford Conservative 4:15, 7 November 2000

My Lords, I rise to support the amendments in the name of my noble friend Lord Peel. I thank the Government for having listened to the arguments in Committee. I am sure that the Minister is reeling from the suggestion that the Government should consider lifting all liability with regard to natural features. My noble friend quite rightly highlighted the important question of mines, which was well supported by the noble Baroness, Lady Mallalieu. Landowners will be put to great extra cost if they must deal with the many mines around the country.

My noble friend Lord Caithness referred to one important issue which runs throughout the Bill: whereas the Bill gives people a right of access--which is welcome enough--it also places an extra burden, in this case a liability, on those whose land is open to access. We have encouraged the Government to move so far, but we hope that the debates around the House will encourage them to consider the valid points which have been made by noble Lords on all sides of the House.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions)

My Lords, we have had a wide-ranging debate, virtually none of which has convinced me that I should change my initial opinion. I deal first with one or two specific items before turning to more general matters. Slightly aside from the remainder of the amendments, those spoken to by the noble Lord, Lord Greaves, deal with rock climbing and mountaineering on quarry faces or other man-made rock faces. I understand the problem that he attempts to address. Clearly, mountaineers do not want any increase in liability to give rise to hostility from landowners or to encourage them to fence off places which would otherwise be available for use. I also understand the purpose of Amendment No. 73D which seeks to exclude all occupier's liability, apart from reckless and intentional acts, in relation to injuries suffered in undertaking rock climbing, snow and ice climbing and so on. It would also remove liability for injuries arising from posts, anchors or other equipment fixed near to rock faces.

However, I do not believe that these amendments are necessary in view of the provisions of the Bill and the Occupiers' Liability Act 1984. That Act already provides that no duty of any kind is owed to any person in respect of risks willingly accepted. Clearly, that would apply to rock climbers, abseilers and snow and ice climbers in the kind of situation to which the noble Lord referred. They are already excluded in relation to natural features, but they would also be excluded from rock faces in this regard. Therefore, I believe that their anxieties in this respect are misplaced. Likewise, landowners' anxieties are misplaced in relation to those who undertake such activities.

In any case, I am not prepared to sanction the blanket removal of liability in respect of all disused quarries or other rock faces created by man. For example, if there was a particularly dangerous disused quarry close to where people lived, it might be reasonable to expect at least a warning notice and, in some cases, fencing. We are not dealing here solely with rock climbers who knowingly and intentionally put themselves at risk; we may also be dealing with children or other walkers to whom there is some liability in respect of quarries. I shall return to other aspects of mines and quarries in a moment.

Although I understand the anxieties of the rock climbing community in this respect, I believe that they are already covered. To do what the noble Lord, Lord Greaves, suggests and remove the liability will put others at risk when there is no particular reason to remove what is, after all, a pretty minimal liability.

Perhaps I may address the central issue in this group of amendments. The noble Earl, Lord Caithness, said that this is not a matter of balance but fairness. I believe that we have been very fair to landowners. The general message is that we have reduced the liability towards people who are legally on their land to a level which is lower than that owed by other property owners to people who are illegally on their land; and, in respect of particularly hazardous or difficult areas, we have totally removed the liability. The noble Earl, Lord Peel, is wrong to say that that breaks all precedent. The noble Earl's proposal goes in the opposite direction. The precedent is the liability to trespassers which applies to all other property owners throughout the land. We are making some exclusions from that precedent for the benefit of landowners of access land. Anything less than that is a matter of serious unfairness not only to potential users of access land but to every other property owner who has greater liability than the owners of access land in this respect.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, this Bill gives new rights of access. At the moment, people do not have the right to walk on other people's land. Therefore, surely the liability cannot be viewed in the same way--unless I am mistaken.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions)

My Lords, the liability of access land owners to someone who is legally on their land as a result of this Bill is less than that which other property owners have to people who are illegally on their land. That is the disparity to which I refer. We have already balanced the increase in the right by reducing the liability across the board. Further, in particularly difficult cases we have agreed--in some respects slightly against my better judgment, although we must try to reach a degree of understanding of landowners' concerns in this regard--to exclude that liability altogether. Therefore, we have made at least two moves away from the general liability which applies, in the case of every other property owner, not to individuals who are legally on other people's property but to those who are illegally on other people's property.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I thank the noble Lord for giving way. Have the Government checked that argument against the Human Rights Act?

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions)

My Lords, the issue in relation to the Human Rights Act is again a question of balance. The Human Rights Act will have to take into account any modifications to the law which have been made by restricting the right of ownership in this respect. We have done so by reducing the liability in that regard and making other provisions which protect the interests of landowners in the way in which the right of access will operate. The Human Rights Act is itself concerned with balance.

The other precedent to which the noble Earl, Lord Peel, referred, which is basically the question of highways, is a very misplaced one. I know a thing or two about highways. In general, highways are maintained by the highways authorities who are aware of defects and can address them. The liability of the occupier of a highway to highway users is not uniformly low, as the noble Earl suggests. The occupier is liable not only for the effects or non-effects of his own activities in relation to the state of the highway, but also for the state of overhanging trees, vegetation, the condition of gates, stiles and adjacent fences when we are dealing with pathways and bridleways and so on. Therefore, there is a substantial liability on the occupiers of highways. In the Bill we have virtually excluded all that. We have excluded liability for natural features, which includes all these overhanging features and for people climbing over gates and fences. So the liability of occupiers of access lands will frequently be substantially less than the liability that occupiers of highways owe to the users of highways.

In general, I feel that the Government have moved substantially to balance out the increased rights which users will have against the rights of landowners to make better use of their property with these restrictions in liability. With the additional amendments in the group we have moved the matter further.

I am not persuaded by the noble Viscount, Lord Bledisloe, that we should move yet further and take into account not only the possibility of a claim, but the likelihood of any claim and the removal of any residual liability. We believe that occupiers should retain a minimal liability, particularly for reckless and intentional acts and that that liability should be owed to trespassers.

The noble Viscount's other point related to buildings, a subject on which, as he says, he and I have spoken. I still cannot accept his basic argument that liability should be excluded in respect of buildings which are not even on access land because the increase of access means that it is more of a temptation to children. The noble Baroness, Lady Mallalieu, in part made the same point in relation to other features. We are talking about buildings which are not on access land. The status of those buildings has not changed. If we were to accept the amendment of the noble Viscount, we would be removing liability even in relation to inherently dangerous structures close to areas where children live, on commons or in urban areas. That cannot be right. We are not talking here about full liability, we are talking about the minimal duty owed to trespassers.

The noble Lord, Lord Roberts, asked whether the landlord would be responsible for something which affected his land which he did not own or operate. I think the answer to the noble Lord is that if he does not own or operate the feature then he would not be liable, but the person who did own or operate it could be liable if it were on access land or indeed any other land. I do not think that an access land landowner would be responsible in those circumstances.

A number of noble Lords referred to mines and quarries. There is an existing duty to fence most disused mines. There is some increased duty in relation to tin mines. We would expect the countryside bodies to provide information about the existence of mines and quarries. We would expect the access authorities, rather than the landowners, to be able to erect notices warning of such dangers. If necessary, access to the areas covered by mines and quarries could be subject to restrictions on grounds of safety or completely excluded by application to the countryside bodies. We also envisage that funding would be provided in appropriate circumstances for the access authorities to help with the provision of signing and fencing. Having said all that, both in terms of existing Acts and of the provisions in the Bill, it would be wrong to remove liability from the landowner altogether in relation to mines and quarries.

Several points were raised in relation to gates, walls and fences. Amendment No. 73B, spoken to by the noble Baroness, Lady Miller, would widen the exclusion from liability in relation to walls and fences. We need to be careful about such a proposal. In many circumstances it might operate reasonably, but potentially it could mean that an occupier would bear no responsibility for a wall which collapsed on people, even if they were not touching it but merely standing by it, although the owner knew it was dangerous. I am sure that that is not the intention of the amendment, but it could well be its effect.

Amendment No. 73C would exclude liability in relation to stiles and other access points in addition to gates. However, again there is a problem with that in that it would mean the occupier would effectively bear no responsibility for, say, a dangerous stile or a dangerous footbridge, even where it constituted the most popular means of access to the access land. I do not think we should go down that road. A minimal liability is still owed in that respect.

The noble Earl, Lord Caithness, asked about advice from the Countryside Agency. We have discussed liability issues with the Countryside Agency on a number of occasions. Its view is that some restriction of liability should operate. But we are talking about the wider balance in this respect. Our concern is that that balance is best achieved by what we have in the Bill at present as further extended in favour of the landowners by the amendments to which the Government have referred.

The noble Baroness, Lady Carnegy, asked whether a number of features are actually natural. Hedges are a natural feature. As a result of another amendment hedges are designated as a natural feature. The noble Baroness also asked about bogs and wetlands. If they are natural features then they again have no liability. It is likely that all such features would be seen as natural, even though there may have been a few minor changes made to them as a result of man's activities.

I have tried to deal with most of the specific points that were raised. I think I am correct in saying that no one spoke to Amendment No. 78, standing in the name of the noble Baroness, Lady Hamwee. Therefore, I propose not to refer to it. The consequences of that amendment would move in the opposite direction from that which most noble Lords are urging. I, too, am maintaining a degree of balance in the debate. Had the amendment been spoken to, I should have demonstrated that at this point. Nevertheless, I think I have made clear my overall position. I believe that the balance we have struck in the Bill is the right balance. A number of the features which we have reflected in our amendments in the group would tighten up the balance. In this context, they all move in favour of the landowner and make it a clearer and more coherent approach. I have pointed out that, whatever the motivation behind some of the amendments, their effect would be difficult to implement and could be damaging to the overall position. I hope that none of the other amendments will be pursued. I beg to move.

On Question, amendment agreed to.

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, in calling Amendment No. 73, I have to point out that if it is agreed to, I cannot call Amendment No. 74 owing to pre-emption.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions)

moved Amendment No. 73:

Clause 13, page 8, line 14, leave out from first ("of") to end of line 15 and insert--

("(a) a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or

(b) a risk of that person suffering injury when passing over or through any wall, fence or gate, except by proper use of the gate or of a stile.").

[Amendments Nos. 73A to 73D, as amendments to Amendment No. 73, not moved.]

On Question, Whether the said amendment (No. 73) shall be agreed to?

Their Lordships divided: Contents, 159; Not-Contents, 113.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Baroness Lockwood Baroness Lockwood Labour 4:42, 7 November 2000

My Lords, under the rules of pre-emption, I should tell the House that Amendment No. 74 cannot be called.

[Amendment No. 75 had been withdrawn from the Marshalled List.]

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

had given notice of his intention to move Amendment No. 75A:

Clause 13, page 8, line 17, after ("origin,") insert ("or any house, building, erection, wall, fence, hedge, gate or stile constructed or retained on the land for the purpose of any natural use of the land,").

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, I have to say that I found the Minister's response to our debate profoundly unsatisfactory. It is unfortunate that, for technical reasons, the amendment tabled in the name of the noble Earl, Lord Peel, cannot be called and I accept that the amendment tabled in my name is no longer entirely apt, given that Amendment No. 73 has been put on to the face of the Bill. I shall therefore not move my amendment, but I shall certainly return to the topic on Third Reading.

In the meantime, I would ask the Minister to study carefully what I have said because he did not answer any of my points and I felt that his response was not acceptable. As I have said, we shall have to deal with this again on Third Reading, using a new amendment which has been adapted to the Bill as it now stands.

[Amendment No. 75A not moved.]

[Amendment No. 76 not moved.]

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions, Parliamentary Under-Secretary (Department for Environment, Transport and the Regions)

moved Amendment No. 77:

Clause 13, page 8, line 18, at end insert--

("(6C) Subsection (6A) does not prevent an occupier from owing a duty by virtue of this section in respect of any risk where the danger concerned is due to anything done by the occupier--

(a) with the intention of creating that risk, or

(b) being reckless as to whether that risk is created."

(3) After section 1 of that Act there is inserted--

"Special considerations relating to access land.

1A. In determining whether any and if so what duty is owed by virtue of section 1 by an occupier of land at any time when the right conferred by section 2(1) of the Countryside and Rights of Way Act 2000 is exercisable in relation to the land, regard is to be had, in particular, to--

(a) the fact that the existence of that right ought not to lace an undue burden (whether financial or otherwise) on the occupier,

(b) the importance of maintaining the character of the countryside, including features of historic, traditional or archaeological interest, and

(c) any relevant guidance given under section (Codes of conduct and other information) of that Act.").

[Amendment No. 78, as an amendment to Amendment No. 77, not moved.]

On Question, amendment agreed to.