The clause removes a burden on landowners who are prevented from making a formal application for the diversion or extinguishment of a public right of way by a restriction in the “right to apply” provisions on the prescribed types of land use. The clause also gives the Secretary of State the power to determine not to make a diversion or extinguishment order in appeal cases where it is considered that the merits of the appeal do not warrant it. The “right to apply” will enable a landowner to make a formal application to an authority to divert or extinguish a right of way. With that will come a right of appeal to the Secretary of State if the authority refuses or fails to act.
The clause corrects flaws in the original Countryside and Rights of Way Act 2000 provisions, which have not yet been commenced, and it removes one of the impediments to the “right to apply” being introduced. The “right to apply” is currently limited to those applying for a diversion or extinguishment of a right of way on land that is used for agriculture, forestry, or the breeding or keeping of horses—one might call that “horsiculture”. In many cases, however, there will be good reason for diverting or extinguishing a public right of way over other types of land. For example, a right of way might pass through commercial premises, where there might be health and safety issues, or through the garden of a family home, where privacy and security would be threatened.
That restriction on the types of land for which a landowner can formally apply for a diversion or extinguishment is a significant anomaly in the legislation. The current legal position places an unnecessary constraint on landowners other than those engaged in agriculture, forestry or the keeping of horses. It places a burden on other types of business operations, for example, and on householders through whose garden a right of way passes.
We intend to supplement the clause with guidance agreed by the rights of way stakeholder working group. The guidance will direct local authorities to work on the presumption that, wherever practicable, public rights of way should be removed, on application, from family gardens, working farmyards and commercial premises where privacy, safety or security is a significant concern.
The first part of clause 16 will make the necessary legal amendments to the Highways Act 1980 to allow the Secretary of State to prescribe in regulations other kinds of land in England in respect of which diversion or extinguishment applications may be made.
The second part of clause 16 will remove a potential burden on the Secretary of State where there is an appeal against a local authority’s decision not to make an order. In such cases, the Secretary of State is currently required to prepare a draft order regardless of the quality and merits of the appeal. It seems only right that the Secretary of State should have some discretion to decide whether to make an order.
I suspect that this is one of the more contentious debates had within the stakeholder working group over the past few years. Many hon. Members will have had representations on the issue in recent months and years.
We must acknowledge that there is a tension between, on the one hand, the Ramblers and others who, as has been said, have established over a long time the public’s right to roam the countryside and, on the other, understandably, the rights of individuals to privacy in their family environment and the rights of business premises.
When the Scottish Parliament was debating the right to roam, it came down on the issue of curtilages. That is one of the examples where the Scottish Parliament, when it introduced the right of way in 2001, made exemptions. It is therefore pleasing to see the English once again catching up with us Scots.
The key thing that I am sure the Minister will want to put on the record is that when it comes to farm premises, which often have tracks or roads passing through them, the onus will be on the farmer to demonstrate that there is significant adverse impact on their business. As I am sure hon. Members will know, there have been a small number of cases, regrettably, where there were disputes because farmers simply did not want to allow access through their land. I hope that the Minister will reassure us about what emphasis he expects the Secretary of State to place on the word “significant”.
Does the hon. Gentleman appreciate that there are health and safety risks to the public? There are few places more dangerous than a farmyard with regard to health and safety. Walking straight through the middle of a busy farm environment can be tremendously dangerous for the public.
Absolutely. The hon. Gentleman makes a good point. As someone who represents a rural constituency and talks to farmers, I agree entirely. In 2001, during the foot and mouth crisis, there was cross-party consensus—everyone supported this, the Ramblers included—that we had to suspend the right, not just for the health and safety of the walker, but for the protection of animals from disease, and because of working practices.
The hon. Gentleman is absolutely right, but we do not want—I am sure the Minister will be happy to confirm this—that small group of farmers who do not like the rights of access to be able simply to say, “I am going to take away the rights of access because they happen to pass through my property.”
I understand the hon. Gentleman’s point. As a representative of a rural seat, does he recognise that, in that mix, it will be vital that there is adequate education for walkers to ensure that, for example, when they take dogs with them, they do not scare livestock, which could cause real danger? A balance has to be struck. What does he think about that?
I am again slightly confused. We are having a good debate about important issues. The hon. Gentleman is right, and I am sure all colleagues would agree, that there is a need to consider that minority. We are talking about minorities: minorities of farmers and minorities of people who perhaps abuse the rights of access to countryside. That is particularly relevant to the lambing season.
It is a big issue and I know from my constituency that it is a source not just of frustration but of business loss if people do not behave responsibly. Perhaps I could tempt the Minister to say a bit more about that and how the Secretary of State will ensure that the valid point about education is dealt with. The key point is what is judged a significant impact. I support the work of the working group. I hope the Minister will say a few words about how we are to strike the right balance once the measure is implemented.
The hon. Gentleman will be aware that we have produced draft guidance on diversion or extinguishment of rights of way that pass through gardens, farmyards and commercial premises. That draft guidance will take on board the comments that hon. Members are making. That is part of the process of consulting on it.
The hon. Gentleman will be aware that when that was circulated there was some information about how the guidance would be used. I would like to draw his attention to it. The draft guidance has been agreed by the rights of way stakeholder working group. The concerns of the Ramblers, for instance, about farmers unilaterally deciding to block a right of way would have been articulated in the working group, and the working group is content with the guidance. It is intended to make local authorities work on a presumption that, wherever practicable, public rights of way should be removed on application from family gardens, working farmyards and commercial premises, where privacy, safety or security is a significant concern.
We could clearly get into an argument about what constitutes a significant concern around safety, security or privacy, but I hope that local authorities will interpret that in the way that both the hon. Gentleman and I would like. If a farmer simply objects because they do not want people walking through their land, that is one thing. If a farmer objects because the route takes walkers through land where there is regularly heavy machinery moving around that could present a threat, I think the local authority would consider that in that circumstance it would be appropriate to take action.