My Lords, in moving this amendment, I will also speak to my other amendments and most of those of my noble friend Lady Byford, which encapsulate mine with major additions. I apologise, therefore, for my long-windedness in seeking to add three new clauses to the Bill. The trouble is that three sections of the Highways Act 1980 are involved.
England has around 18,000 miles of rights of way, which these days are used mostly for recreational purposes. A minority of these pass through gardens. Last weekend, I was walking in Dorset and just before the Recess I was walking on the Quantock Hills in Somerset. Both these walks, as it happens, were through farms and on common land. In a later amendment, I will have something to say about common land.
The Somerset walk took me past a farm in which it would be quite easy to look into the windows had I so wanted. Most people are uncomfortable walking through someone’s garden or alongside a house in the country. However, there is, alas, a minority of walkers who are not so respectful of other people’s property and it means that anyone with a right of way through their property has no right to privacy, security or safety. Young children cannot be allowed to play in their own garden unaccompanied; nor can family pets be allowed to roam freely. There is not even a legal right to have a gate, which is something that I hope we can deal with in a later amendment to the Bill.
In essence, the family home cannot be used as a family home as the Committee would understand it. This means that, as we continue to develop as a country, the situation gets worse for those afflicted. They have no legal defence against theft or vandalism. Criminals can legally wander around to assess a property for burglary and come back to isolated properties when they are unattended. There are numerous examples
of walkers peering through the window at those sitting down for a family lunch, and of unleashed dogs running around a domestic garden and chasing resident dogs, killing chickens, ducks, or cats, defecating and so forth. Sunbathing in the garden, having lunch on the patio or a child’s birthday party take on totally different dimensions in these circumstances. Currently, the homeowner has no legal right to apply for a diversion or extinguishment and lives in a permanent trap. The stress and the financial hardship involved in employing specialist lawyers, only to learn that one has virtually no legal rights, have led to illness, mental breakdowns and at least two suicides. The financial resources required to get expert legal help runs beyond most ordinary people’s means and makes justice unaffordable.
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The Minister in another place, Defra and the Law Commission all acknowledge that there is a problem that needs dealing with, but say, “Let’s see what happens with the proposal in the Bill for new guidance on giving the right to apply to and ultimately, in specific circumstances, to appeal to the Secretary of State”. The problem is that it will take some years before we discover whether the new draft guidance on the right to apply for diversion or extinguishment of rights of way that pass through gardens, farmyards and commercial premises works. The guidance is not even statutory, and I can see the Secretary of State being overwhelmed by appeals.
Why is this? In the current government-proposed solution, the public interest is in legislation and the family home interest—privacy, security and safety, as I have mentioned—is in guidance. They do not have equal weighting. In the proposed solution, the full local authority cost is to be passed to the applicant—in other words, the ordinary family home owner. There is no cap. The potential cost could be beyond many ordinary people. The proposed solution therefore will not work.
What is needed to solve this dilemma is a legal presumption in favour of extinguishment or diversion, not the “wait and see” attitude from the Government and advocated not only in the brief from the Open Spaces Society but also by the specialist working group that my noble friend referred to just now. I beg to move.