Fourth Standing Committee on Statutory Instruments, &c.


Wednesday 17 February 1993


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3 Fourth Standing Committee on Statutory Instruments, &c. Wednesday 17 February 1993

[DR. JOHN G. BLACKBURN in the Chair]

Draft Local Authorities (Recovery of Costs for Public Path Orders) Regulations 1993

4.30 pm

The Minister for the Environment and Countryside (Mr. David Maclean): I beg to move, That the Committee has considered the draft Local Authorities (Recovery of Costs for Public Path Orders) Regulations 1993. The regulations were laid before the House on 18 January 1993 and, if approved, will come into force on 15 March 1993. They were made under section 150 of the Local Government and Housing Act 1989, which enables local authorities to charge for services, subject to the making of appropriate regulations. They will enable local authorities to recover from applicants the costs incurred in making public path orders. Recoverable costs are specified as being the whole of an authority's advertising costs, up to £400 in respect of their actual administrative expenses, and, if an order covers more than one proposal, a further £75 for each additional path included in the order. The principle of charging is a simple one. A landowner or developer who may reasonably expect to benefit from the stopping up or diversion of a public path should be expected to pay for the order which achieves that. The power to charge is nevertheless discretionary and authorities may choose to waive part or all of the charge if they wish—for example, in cases of hardship or where a proposed diversion brings with it additional benefit to path users. Authorities are specifically required to refund charges in certain circumstances—for example, when they fail to proceed with an unopposed order or when the order proves subsequently to have been invalid. We did not consider it appropriate or necessary to allow authorities to charge for orders such as creation orders or definitive map modification orders, which are made in the interest of the public. The regulations do, however, allow an authority to charge for a public path creation order when this is taken concurrently with an order to extinguish a related path or way. This occurs, for example, when a proposal moves both the starting and finishing point of a path. The maximum charge of £400 in respect of administrative expenses incurred by the authority is less than some would have wished, but in the light of the information presently available to us, we do not believe that a higher figure is justified. There should be some incentive for local authorities to keep costs down. Improvements in authorities' internal accounting procedures may help to provide a more accurate assessment of their actual costs. With this in mind, we will review the regulations within two years of their coming into force. Such a review will enable us to consider the practical effect of charging and the need for further improvements. 4 We believe that the regulations are needed and that the proposed charges are fully justified. They will enable authorities to recover a significant proportion of their costs and provide applicants with a clear indication of what they may reasonably expect to pay. They will also encourage applicants to put forward proposals that are demonstrably of benefit to the public, which will gain general support and which may secure a reduction or waiver of the charge. They should therefore help to secure positive and beneficial changes to the rights of way network which will benefit landowners and users alike. I commend the regulations to the Committee.

4.33 pm

Mr. Andrew F. Bennett (Denton and Reddish): I thank the Minister for his comments and have one or two questions. I understand that the Government consulted widely with those who have an interest in walking and that there were no objections to the measure. Perhaps the Minister will confirm that. Although I have no pecuniary interests, many hon. Members know that I often speak in the House on behalf of the Ramblers Association and, as a result, I have been made an honorary life member of that association. I am also a member of the Peak and Northern Footpath Society executive committee. When the Minister responds, I hope that he will make it clear that he does not encourage the practice of people asking for diversion orders for footpaths. I am well aware that, in the surrounding part of greater Manchester which reaches into the Peak district, problems arise when farms are bought up by people who do not want to farm. Those people are often extremely proud of their properties. They like to have an old stone on their building revealing that it was built in the last century or earlier. They often restore their buildings well. The one historical aspect of their properties for which they do not have sympathy is the public footpath. In this country, our footpaths provide an important historical record. It was rare for a footpath in the past not to lead somewhere useful. It led from the farmhouse to a local church, chapel, mill or spring. I find it sad that people who buy up old houses have an obvious concern for the history of the dwelling but do not extend it to the footpath. Often they start to block the path or make it difficult for people to follow it. A confrontation might result and they apply to the local authority for a diversion order. I welcome the idea that people who want to divert should pay for the cost. However, I make a plea to discourage people from pursuing such an action. I understand the argument that people want a measure of privacy but I think that people who buy up farmhouses and other buildings in the countryside should accept responsibility for maintaining the historic network of footpaths and not be so keen to get rid of something that has served well for many centuries. I ask the Minister to examine regulation 2(1). The Ramblers Association has provided me with a helpful note. Regulation 2(1) covers most local authorities but, as I understand it, enterprise zone authorities, urban development corporations and housing action trusts come under the definition of local planning authorities. Could the Minister explain to me why they were not given the power to make charges along with local authorities? I 5 cannot see any logic in that. Perhaps the explanation that I have here is not correct. I hope that the Minister could deal with that matter. Footpaths on the urban fringes are often particularly contentious. Regulation 3(2) refers to the cost of contested diversions. Local authorities can incur considerable costs and, on occasion, seem reluctant to get involved in contested decisions for that reason. If it is logical for the person applying for a diversion order to have to pay costs if it is uncontested, it must also be logical for that person to pay for the costs if he is successful in obtaining the diversion order. A successful outcome often involves the local authority in the considerable expense of getting someone to appear at the inquiry and arranging consultations. Could the Minister throw some light on that? To what extent does the Minister feel that local authorities ought to include in their corporate plans a fixed sum for dealing with footpath matters? Many local authorities do not seem to treat footpath matters seriously. They are the kind of problem that someone has responsibility for on a Friday afternoon if nothing else has cropped up during the week. Sometimes, much frustration is caused for the people who want the diversion or for those who oppose it because footpath problems are not perceived by the local authority as a priority. How does the Minister envisage local authorities developing their responsibilities to look after the footpath network in their areas and trying to effect conciliation between the interests of walkers, farmers or home-owners? They need to resolve these matters with the minimum of friction. How did the Minister arrive at the figure of £400? Is there evidence that that is the cost to the local authority, or was the figure plucked out of the air as an amount that the Minister thought that people applying for diversions might be able to afford? I should be grateful for a little information. Can the Minister define "one public path", for which £400 is paid? I thought that a public footpath was indentified by a number which corresponded with the local footpath plan. As I understand it, a footpath which crosses a parish boundary, has two numbers. In those circumstances, are two charges of £400 made? On diversions around farms, one path often leads to the farm and another leads away; so as I read the order, one person could apply for less than 100 yd of a path to be diverted and incur two charges of £400, while another person could request the diversion of a much longer footpath and have to pay a smaller amount. I should be interested to hear the Minister's response. Occasionally, the Secretary of State has powers to make such orders if the local authority refuses. Would he make a charge or would he perform the function out of the kindness of his heart?

4.42 pm

Mr. Maclean: I am delighted to respond to the hon. Gentleman's comments. He asked whether I would deplore the idea of people applying for diversion orders. The answer is, certainly not. Applications for footpath orders are made to the Secretary of State, who can only exercise his discretion. It is not for the Government to say 6 yea or nay. I deplore people illegally blocking footpaths. Where footpaths and rights of way exist on the definitive map, the Government are committed to opening them. I urge all landowners with footpaths through their land to co-operate. It is quite legitimate for people to seek a diversion of a footpath. The references to history by the hon. Member for Denton and Reddish (Mr. Bennett) missed an essential fact—many paths from the house to the chapel or the shop were for the exclusive use of the person who lived in the house. They were not designed for use by hundreds of people. Now that they are designated as public footpaths, it is quite legitimate for certain people to want to have them diverted. People have a right to object—decisions may be contested and hearings may take place. I hope that that will be explained to interested organisations such as the Ramblers Association to prevent them from being quite as militant as the hon. Member for Denton and Reddish might like. Co-operation between those who want to create a new footpath or extend an existing footpath and those who want a diversion, is a positive benefit to the countryside. The nature of paths has changed. Footpaths are no longer a short cut, purely for practical use by a landowner to get from his or her door to the church or the shop. Footpaths are now used as a leisure facility. People want to use them casually and do not necessarily want to walk the shortest distance, which might mean going through someone's kitchen. The hon. Gentleman and myself might want to walk a footpath that is further from residential property and, perhaps, take a longer or more scenic route. It depends on the local circumstances. I appreciate the sensible need for diversion orders that must satisfy the criteria and persuade those who might object.

Mr. Bennett: Does not the Minister accept the historical reasons for footpaths? We are trying to preserve ancient churches and buildings. Many homeowners want to preserve the historical features of their homes and the footpath is an historical feature. As with a decision to preserve an impressive oak tree, the same argument could be used to preserve another part of history—the traditional path that people have walked.

Mr. Maclean: It is a matter of perspective. There is no point in trying to preserve the ancient oak tree unless new oak trees are being planted because one day that ancient oak tree will not be there—the next storm might take it down. The countryside is evolving all the time. Just as people create new footpaths, so it is right to divert footpaths. Some people might never want to do that. They might have a tree that they want to preserve for evermore, but they will fail because, at the end of the day, nature will beat them. I want a countryside with sensible access, I want our existing rights-of-way network properly opened. I should like to encourage landowners and homeowners to create new, permissive paths. The countryside needs the benefit of the finance of the millions of people who live in towns and cities who use, enjoy and contribute to its upkeep. The technical areas, such as enterprise zones, that were mentioned by the hon. Gentleman are not included in the 7 Bill because they are not covered by the local Government and Housing Act 1989. He also asked about the costs of contested diversion orders. It would be unfair to make a person applying for a diversion order pay the cost of a public inquiry, which could include paying for the lawyers wheeled in by the council. It would be legitimate to pay for an uncontested order, but public inquiries are held for the public benefit. There are no cases of applicants paying the costs of a public inquiry.

Mr. Bennett: May I take the Minister back to the earlier point about regulation 2(1)? I am no expert on this, but a letter from the deputy director of the Ramblers Association states that "Section 257 of the Town and Country Planning Act 1990 enables any 'local planning authority' to make an order under the section. By virtue of Part I of the Act, enterprise zone authorities, urban development corporations and housing action trusts come within the definition of local planning authority'." Will the Minister explain why he was relying on a different piece of legislation?

Mr. Maclean: I shall need to return to the hon. Gentleman on that. If there is a technical lacuna, I should like to respond in more detail. My understanding is that technical areas are not covered by the 1989 Act. I shall take advice about whether they are covered by the Town and Country Planning Act 1990. The hon. Gentleman asked how we arrived at the figure of £400. We consulted widely and tried to carry out surveys of the costs of diversion orders to local authorities. The evidence was that the costs varied greatly, especially the cost of advertising, which ranged from £60 to hundreds of pounds. Local authorities' administrative costs varied from hundreds of pounds to about £2,000. I decided, because of this state of flux, that it would be fairest not to limit their advertising costs. The cost of newspaper advertising around the country differs widely and the applicant would have to pay the full cost of such advertising. I fixed a maximum of £400 per application per local authority. Some local authorities might complain that their costs are more than that. If they are, they will have an incentive to get their costs down. At present, they cannot recover any costs. In future, they will be able to recover their costs up to a maximum of £400. If, even with experience and better financial control by local authorities, there is evidence that their costs are higher, I shall review the figure and I might decide to increase it. I should like, however, to exercise financial discipline over costs. The hon. Gentleman asked about the corporate plans of local authorities. I do not want to interfere. It is entirely for local authorities to decide their priorities. If they decide that the creation of new footpaths, or working with countryside agencies in the rural action plan to open footpaths, or dealing with diversion orders are their priorities, they must allocate finance accordingly. I do not want to dictate to them. I shall encourage them to treat footpaths as a serious matter, but I do not want to lay down rules on how much they must spend. 8 The hon. Gentleman asked, "What is a public path?" That is a valid question. In many ways, the law is unsatisfactory. He was right to mention that local authorities have different numbering systems so that a footpath covering a relatively short distance, perhaps about 100 yd, may have two different numbers if it crosses two fields, or three numbers if it crosses three fields. We can all recognise a path when we see one. We all appreciate paths when we walk along them, but how they are described in law or in the local authority register varies around the country. I can reassure the hon. Gentleman that the cost would not be £400 per stretch. It could be £400 plus £75 plus £75 plus £75. We cannot tell local authorities exactly what to charge. We urge them to use common sense. We would like them to use a rule of thumb to reach a sensible judgment and to take account of the termination points of the footpath and of whether it is just one footpath, even though it has a dozen different numbers. The hon. Gentleman also asked whether there would be a charge if the order was referred to the Secretary of State. The order will be referred to the Secretary of State only on appeal and the local authority will be entitled to raise a charge, which will be refunded only if the order is invalid or if a person has been negligent in requesting it. The applicant will not usually receive a refund and will have to pay, even if he is unsuccessful in obtaining an order. He will be refunded only if the local authority makes a mistake and the order is invalid. I shall write to the hon. Gentleman about the question relating to the Town and Country Planning Act 1990.

4.52 pm

Mr. George Walden (Buckingham): I thank the Minister for introducing the order. I presume that he has done so following an approach from me on behalf of my council, a few months ago—at least, that is what my council will be told. The point I wish to raise echoes the remarks by the hon. Member for Denton and Reddish about the £400. When local councillors approached me about that, they cited an example of developers who wished to have a path moved at considerable administrative cost. They suggested that it seemed only fair that the developer, who stood to make tens or hundreds of thousands of pounds, should contribute to the cost of the operation. My hon. Friend has set the maximum cost at about £400, and I understand his logic. However, those same councillors suggested—we are lucky enough to have a Conservative council—that, as we want local councils to be enterprising, they should take into account the different abilities to pay of, for example, a large building consortium and a private person. Some £400 may not seem much to someone who will make £10,000 or £100,000 out of a development, but it may seem a great deal to an individual who will be charged the same amount. I wonder whether that is right or whether local authorities should not perhaps be allowed to show more initiative. My hon. Friend undertook to review the cost some time in the future. When he undertakes that review, will he consider not only raising the ceiling, but giving councils the power to differentiate between applicants?


4.45 pm

Mr. Walter Sweeney (Vale of Glamorgan): I, too, must declare an interest as a member of the Ramblers Association, but I have a perspective different from that of the hon. Member for Denton and Reddish. The instrument deals with law-abiding landowners who comply with the law, not wilfully block paths that would otherwise be open to members of the public, The charge of £400 is too high. If a large part of the costs of a council consist of advertising expenses in a local newspaper, why not impose on the applicant the burden of placing the advertisement? When a person applies for an off-licence or an on-licence, it is for the applicant to place the advertisement in the newspaper and to ensure that the application complies with the law. The applicant tries to convince the court that he has satisfied all the requirements. That would solve the problem of the variation in different advertising fees set by different newspapers throughout the country. It would also mean that a council would avoid unnecessary administrative work. I am sure that the average applicant could carry out the administrative task of placing the advertisement more cheaply than bureaucrats in town halls. The fee should be kept to a minimum.

Mr. Bennett: I accept that the hon. Gentleman wants to keep down costs. However, for groups such as the Ramblers Association and the Peak and Northern Footpath Society, monitoring the placing of advertisements is a difficult task. All members of such organisations are volunteers and unless that placing can be monitored, people will not know whether they want to oppose an order. The great advantage of the local authority carrying out the task is that the orders usually appear in one form and the organisations are notified directly about them by the local authority. The form of the order would be backed up by the advertisement. If individuals placed the advertisement it would be harder to ensure that the groups who might want to object to the order have it drawn to their attention.

Mr. Sweeney: There would be no need for the ramblers or other groups to monitor the advertisements. The applicant would produce the advertisement from the newspaper and hand it to the council for consideration in support of his application. The council would also consider responses to the advertisment. The question of vetting the advert would not arise.

Mr. Bennett: It is not a matter of vetting the advertisement. The Peak and Northern Footpath Society has footpath officers who keep an eye on whether the footpaths in their areas are clear of obstruction. If someone is applying for a diversion order, the officers decide whether it is reasonable. The only way in which that can happen is either for them to be notified directly by the local authority—the best approach—or to be enabled to monitor the advertisements. If they see the advertisements, they can check whether a problem will 10 arise if the diversion is agreed and, if necessary, object to it. Once such a task is left to the applicant, how can footpath officers or organisations such as the Peak and Northern Footpath Society know where to look to see whether a specific closure will adversely effect a long-distance path?

Mr. Sweeney: There is nothing to stop a pressure group from inspecting advertisements in local newspapers as it thinks fit. My argument is that the advertisement should be placed by the applicant. As a result, the costs paid would more accurately reflect the costs of the application.

4.58 pm

Mr. Maclean: I am delighted to respond to the points that were made by my hon. Friends the Members for Buckingham (Mr. Walden) and for Vale of Glamorgan (Mr. Sweeney). I understand the argument advanced by my hon. Friend the Member for Buckingham, but I offer a word of caution. People are entitled to access to law and local authority services and have the legal right of diversion of an order to satisfy certain criteria. If they could pay on the basis of the benefit received or their wealth, we would be creating a tax-raising power for local authorities. I can understand that there may be local chagrin when someone who benefits from a development costing millions of pounds pays the same as a humble householder whose path is moved. However, the important principle is that local authorities should charge according to actual costs, which they should aim to keep as low as possible. They should not charge according to the wealth of the person applying for an order to be made. The question of costs will be kept in mind for the review. I appreciate that some local authorities with higher costs may feel aggrieved that I have not set a higher ceiling, but I have allowed complete flexibility in advertisement costs. I advise my hon. Friend the Member for Vale of Glamorgan that we encourage local authorities to use three newspapers that are in circulation, but they have responsibility for placing the advertisement. We have no plans to place the onus for that on to the person who is applying for the order, but it raises an interesting idea. If, as is the norm, all the orders are circulated to the statutory bodies and relevant interest groups, they will probably find out more than they would through press advertising. When the public has to be informed about something, we always advocate advertising in the press or publishing the information in the London Gazette. Perhaps in future we should consider other conditions and more modern methods of communication. That is another matter that we can keep in mind for the review. Finally, I thank my hon. Friend the Member for Buckingham for the consistent pressure that he has applied. I have a feeling that he will not be alone in claiming credit for the proposal and I suspect that many other Conservative Members will do so. I, of course, will merely take the blame for the level of fees.

Mr. Bennett: I thank the Minister for answering all the questions and you, Dr. Blackburn, for presiding. I am sure that all members of the Committee will agree that we have had a useful sitting.


Mr. Walden: I thank the Minister for his undertaking to review the question of costs and to take my point into account. That will be particularly welcomed by Councillor Mrs. Jackie Phipps in my constituency. She is a very resolute lady, so my advice to the Minister would be to go ahead and make life easier for himself and for me.


Question put and agreed to.

Resolved, That the Committee has considered the draft Local Authorities (Recovery of Costs for Public Path Orders) Regulations 1993.

Committee rose at two minutes past Five o'clock.


Blackburn, Dr. John (Chairman)

Bennett, Mr.

Benton, Mr.

Currie, Mrs.

Evans, Mr. Jonathan

Hughes, Mr. Robert G.

Maclean, Mr.

Marshall, Sir Michael

Merchant, Mr.

Sweeney, Mr.

Tipping, Mr.

Townend, Mr. John

Walden, Mr.