‘(2) In order to be satisfied under subsection (1)(b), the decision-maker must have regard to public consultation.’.
Public rights of way are a controversial subject; many hours have been spent along this corridor in various Committees debating rights of way and rights of access. I took part in such debates when I served on the Committee considering the recent Commons Act 2006, along with the hon. Member for Meirionnydd Nant Conwy and perhaps others on this Bill.
It is crucial that people have the chance to comment on any proposal to alter or extinguish a right of way. The clause as drafted allows a right of way to be extinguished as long as the decision maker is satisfied that
“(a) an alternative right of way has been or will be provided, or
(b) the provision of an alternative right of way is not required.”
However, it does not say how that conclusion will be drawn and what information will be available on which the decision-maker will base his decision. Consultation must be part of it, and there should be a duty to consult specifically on that issue.
The proposal to extinguish a right of way may not have been a significant part of the overall debate on the application or on site-specific national policy statements. The previous consultation will have addressed the bigger issues and people in the local community may not have noticed what was happening to the rights of way. At the end of the process when the development consent is granted it is important that the issue is drawn to the attention of local people so that they have the chance to comment on it. It may affect only one or two people but in a very significant way, and they may not have been aware of it when they were considering bigger issues connected with the development: for example, its construction, its size, transport issues and so on.
I hope that the Government will consider accepting the amendment to ensure that the decision maker has all the information to hand when deciding whether the provisions in the clause have been met.
We are very much inclined to the support the amendment because we want to maximise people’s consultation opportunities in the Bill as a matter of principle. Rights of way generate surprisingly strong feelings, as hon. Members know from our constituency postbags. It is better to have a requirement to have regard to consultation and to ensure that people feel that they have a fair crack of the whip, rather than a group of dedicated ramblers, for example, going for judicial review arguing that their concerns about a right of way that is precious to them have not been properly taken on board.
I hope that the Government will be sympathetic to the amendment.
As my hon. Friend said, this is a complex issue. On one hand, I am very sympathetic to farmers who find that a right of way goes straight across their working surfaces—for example, through the centre of a farmyard where animals are kept—and any attempt to divert it to a more sensible path usually meets with huge resistance.
On the other hand, many arable farmers display agriculture at its most bloody-minded in their absolute refusal to obey the law, which is that when land on which there is a public footpath is ploughed over, it should be made good within a certain time. But that land is often deliberately left so that to go across it is like engaging in an endurance test because walkers end up with mud up to their knees. There are important enforcement issues to be considered.
A lot of common sense needs to be brought to the issue. People need to recognise that there are genuine concerns about the management of livestock, and rights of way need to have a sensible regard to them. Equally, those historical rights of way have not been put there for the express purpose of interfering with the work of the agricultural community and irritating them, but it would be much better for all concerned if they did the minimum required to ensure that they are observed effectively. Those who do it rarely have cause for concern, but there are few issues that get people more angry than the obvious disregard of something through, as I have described it, sheer bloody-mindedness.
We all know, for example, that the procedure for stopping a current right of way, a stop order, is time-honoured and defined in law, and I am sure that many of us have had experience of inquiries of that kind. I am concerned about the wording of paragraph (b), which states that
“the provision of an alternative right of way is not required.”
Who is to decide that?
Let us think about public footpaths, which often join up with one other. If a public footpath does not join up with another, is that a reason for saying that it is not necessary? For example, if there were two footpaths in a locality running roughly in the same direction, does that mean that one is not necessary? I would be wary of ditching the current procedure whereby age-old usage and local conditions are examined, along with whether they link up with others and are in reasonable repair.
I would be the first to say that there have been occasions when our friends in the Ramblers Association have suddenly decided that they use a footpath that they have not known for half a century previously, and spin out the costs in time, money and sometimes a great deal of frustration. That said, there are many public rights of way that people are reliant upon and that have existed for good purpose over many generations, so I am wary of the clause’s working because I would not like someone totally divorced from the locality to decide suddenly that a footpath is not necessary, for whatever specious reason there might be. In his response, perhaps the Minister could tell the Committee what kind of reasons are likely to be adduced to support the contention that a right of way is not necessary, as that would be quite useful for the debate.
I am grateful for the opportunity to ask the Minister to clarify the wording of the clause, because I am interested in the words “is not required.” On a variety of occasions I have had to deal with the protection of rights of way and have found myself at different times on different sides of the argument. For instance, many people will recall the van Hoogstraten case, concerning an outrageous obstruction of a public footpath where maintenance of the right of way was absolutely crucial. However, there has often been obstruction to the closure of rights of way in circumstances where closure is necessary for the reduction of crime and disorder, such as on council estates and in inner-city locations.
A few years ago, we clarified some of that in legislation in order to make it possible for appropriate closures to take place. The problem is that we all want appropriate closure and protection, and the definition of which is which, as the hon. Member for Meirionnydd Nant Conwy said, is not always easy. Therefore, being absolutely clear about what is meant by the words “is not required” is important, and it would be helpful if the Minister could spell that out.
I have some concern that public opinion could be the only arbiter of whether a particular closure takes place. There are some places where all sorts of closures would take place on the basis of instinctive public opinion, despite their being necessary for people to get around. In other circumstances, public opinion is absolutely the right criterion to use. Again, the devil is in the detail, so my concern is to be absolutely clear what the clause means and to ensure that there is no danger of unintended consequences, where wording is intended to mean one thing but perhaps at a later stage could be interpreted through case law to mean something rather different. Therefore, the clearest possible explanation from the Minister of the test for whether an alternative right of way is required would be extremely helpful.
The Government do not support the amendment. The clause specifies that an order granting development consent cannot extinguish public rights of way over land, unless the authority making it is satisfied that alternative rights of way have been provided or that none are required. That point has been raised by my right hon. Friend and other colleagues in the debate. The procedures are drawn from section 32 of the Acquisition of Land Act 1981.
The amendment would compel the decision maker to have regard to public consultation before deciding that an alternative right of way is not required. That might prove difficult if the decision maker was required to hold their own public consultation for the purposes of this section. Such an additional consultation would be expensive and could delay unreasonably the final determination of the application.
In any case, we believe that the amendment is unnecessary. The application as a whole would already have undergone extensive consultation, been widely publicised and been examined in detail. It would have been open about any rights of way to be extinguished, and any person concerned about the proposal would have the opportunity to make representations to the promoter, or subsequently to the IPC on that matter.
That is the crux of the matter: “has the right to make representations”. As the law stands, the person would have an opportunity to address, effectively, a tribunal hearing, or an inquiry. Therefore, the member of the public loses the right to challenge that procedure at inquiry level that they would previously have had. Now we are down solely to representations; that is a major concern.
As I said, the application would have to have been open about any rights of way, and any person concerned could make representations. Any representation would have to be taken into account by the IPC if it was relevant, particularly in deciding whether a right of way was needed. We understand the importance of the issue.
We have the power to issue guidance on consultation in clause 37, which we have previously discussed. We intend that it would include guidance on the right of way. An example of a right of way that may no longer be required, as asked for by the hon. Member for Meirionnydd Nant Conwy, would perhaps be a cliffside path that has been washed away by erosion but would still exist in law, or a right of way that has fallen into disuse. Apparently there is clear case law on those types of definitions and it would apply in those instances.
It is not clear to me what my hon. Friend is drawing from those two examples. For instance, a clifftop right of way, which is an important aspect of access that Government policy supports strongly, would surely still be required. Is that the interpretation he is placing on that example? Also, he used the words “needed” and “required”. The Bill contains the word “required”, but it is not clear from what he has said what is meant by that.
I have been trying to reassure the Committee that there is case law in respect of the matter, that there are instances in which there will no longer be a requirement for a particular right of way, that the representations that individuals can make are already contained within the consultative procedures, and that there would be no loss of rights, as there would be relevant representation for the examination, including the open floor stage.
The Minister is obviously engaging fully with the matter. All the case law is predicated on the fact that there is currently a statutory right to a full inquiry. That is the crux of the matter. I do not want to delay matters unnecessarily and perpetuate quasi-tribunals that might not be of any use, but we are talking about a time-honoured statutory procedure. People who feel aggrieved because they think they will lose what they believe to be their age-old rights of access will no longer have recourse to an inquiry. They will simply be allowed to send in a submission within the ambit of the planning procedure; in other words, they will be consulted in a way, but that is all.
As the Minister said, the case law on the issue is extensive, and often decisions are made on the quality and quantity of use—how many people use a footpath, how long it has been used, whether there is evidence that the local council have maintained it or it has fallen into disrepair and so on.
The Minister’s examples are obvious ones that would cause no problem to anyone, but many fall into another category, which would create problems. For example, people rely on footpaths for recreation and other purposes, and they might find their representations on what might seem to be a trivial matter have been brushed aside in the interests of a larger scheme. For a local village or town the matter is not trivial but very important. The Bill is in danger of trampling on people’s ancient rights.
I recognise the sensitivity and significance of the issue. We have had many discussions about previous procedures and ways of doing things, and this proposal changes things, but we want to reassure everyone who is interested that we are trying to strengthen the consultative arrangements by having a pre-application stage and a hearing.
I tried to explain to the hon. Gentleman that there will be no loss of the right to complain to the inquiry. There will be relevant representations for examination during the open floor stage of hearings. Individuals will still have the right to make those representations—
Mr. David Jones (Clwyd, West) (Con) rose—
The open floor does not assist me very much, because the IPC could decide not to allow examination or cross-examination at that stage. Therefore, any objector could be muffled.
I want to underline what the hon. Member for Meirionnydd Nant Conwy said. I have been involved in many inquiries about public rights of way and I know the fundamental importance of cross-examination. The veracity or otherwise of evidence of long use can usually be tested only by assiduous cross-examination. If that is to be abandoned as a result of the proposed procedure, people’s rights will be trampled on, as the hon. Gentleman said.
We are returning to previous discussions about the adequacy of the consultative arrangements being put in place, whether the IPC will be able to satisfy people that their concerns are being listened to and whether they have an adequate opportunity to put them before the appropriate authorities. We are confident that the arrangements we propose are more than adequate, and we oppose the amendment on that basis.
The Minister sets great store by the fact that there will be an examination of the overall application. However, subsidiary changes are proposed in this and other clauses to what will happen in the local area based on the main applications. The wider environmental impact will be considered primarily, and that will be people’s biggest concern. Consideration will also be given to transport implications and all sorts of matters that were set out in the national policy statements and how they should be applied locally once an application has been submitted.
Rights of way will not necessarily occur to people straight away. They might come to the fore only later on, when it would be too late for them to be considered in the open hearing. People will quite rightly have been exercised by the bigger picture and the totality of the development. There might be other provisions and unforeseen consequences. In the application and consultation, the applicant may have put on page 753, line 22: “PS: We’re going to take away your right of access.” That is not good enough. On matters as contentious as rights of way, where there are established processes for addressing the issues, I think that the Government have gone far enough. We have heard from hon. Members how important such provisions are to people.
Very generously, the Minister said that he will look again at the provisions under clause 114. I think that it is unfortunate that he has decided not to do so under this clause. Having heard about these concerns from hon. Members of all parties, it is important that we test the Committee’s opinion.
Division number 18 - 7 yes, 12 no