Mr.
Benyon: Will the Minister clarify how the independent
appeal process will work? Let us suppose that landowner A disagrees
with the designation and takes the matter through the objections
process as described in the document. To whom does he or she take it,
and at what point does the Secretary of State get involved if they
disagree with that decision?
Ann
McKechin: The decision will normally be made by a planning
inspectorate. It is an intermediate stage of considering
representations, including representations of factual issues. That,
together with the availability of a digital review, provides the normal
decision-making process. As I said, there are circumstances where the
Secretary of State might be required to intervene, particularly on the
issue of consistency, or, for example, where they decide to modify a
route. That would mean that some of the decisions taken would no longer
be applicable or binding on the Secretary of State, as they might apply
to a different piece of ground from the route that it was proposed to
change.
The appointed
person may have made an assessment of the underlying facts on which the
assessment of significance is based. For instance, those could include
the periods during which the landowner uses his land for a particular
purpose—I will come on to the different circumstances to which
that may apply—the extent of the land subject to that use for
those periods, or the effect on the landowner’s ability to use
his land for that purpose. The Secretary of State would be bound by the
findings of the appointed persons in any of those things, unless the
finding was irrational and could be set aside by the court on judicial
review. We do not consider it appropriate that the Secretary of
State’s discretion in the essential question on which they are
required to decide—that of where fair balance lies—should
be constrained so as to make them bound by the decision of the
appointed person.
Mr.
Benyon: Does the Minister understand my concern that that
would allow a hypothetically weak Secretary of State at some point in
future to apply the vested
interests of those who have badgered him in the golf club about a
particular issue? [Interruption.] I am not talking
about the present Secretary of State, who I am sure would not behave
like that. However, he could effectively cast aside all the evidence
put to an independent, quasi-judicial process, and overrule it. I
entirely understand the point about the Secretary of State, but the
issue that the Minister raises is a red herring. I accept that where
the decision is perverse or made on the basis of false evidence, it
should be overruled. Nevertheless, this has to be an independent
process.
Ann
McKechin: Any decision that is made by the Secretary of
State, an elected representative, has to be accountable. That elected
representative in turn has to be accountable to Parliament. The issue
of precedent will have to be considered by any Secretary of State when
they come to make that decision. It is not a free-for-all made in the
back room of the golf club—far from it. It is based on an
administrative decision, and there are precedents that any Secretary of
State, either now or in future, would be required to
consider.
Mr.
Swire: What about Secretaries of State who have not been
democratically elected to anything by
anyone?
Ann
McKechin: That would refer to something in the future, and
I cannot account for who would make that decision. Elected
representatives are accountable to the House, whose proceedings in turn
are transparent and on the record. Every Minister is subject to oral
and written questions in the House and the other place.
I want to
clarify the various stages of the procedure, because it is important to
realise that it is a four-step procedure. An objection is made and the
information is passed to the appointed person—the nominated
person under the planning inspectorate. The appointed person then
gathers and weighs up the evidence. They make a recommendation to the
Secretary of State, who makes the decision and who must—I
reiterate must—take account of the recommendations of the
appointed person, so it is not a decision in which he has complete
freedom. He must consider the facts of the case and the recommendations
made by the appointed
person. I
also want to clarify the issue of the Bill’s compatibility with
the ECHR, which was raised by the hon. Member for Newbury. The Bill has
been fully compatible with the ECHR throughout its passage in the House
and the other place. As I said, we had a useful and fruitful discussion
regarding the issue of putting in place an intermediate process and
that is why the clause has been put in the Bill. That is welcome. It
shows that we want to ensure that the ability to address concerns is
fully represented in the Bill. On that basis, I urge the hon. Gentleman
to withdraw his amendment.
Mr.
Benyon: Before I address those concerns, it is right to
pause to consider the important intervention made by my hon. Friend the
Member for Upminster on behalf of naturists. Like many members of the
Committee, I received an impassioned plea from naturists. They should
be considered as interested parties by the Minister
and, where possible, she should go to see the problem at first hand to
hear their concerns in attire that they would find
suitable. The
Minister mentioned the naked cyclists in London. I was appalled at the
heavy-handed treatment by the Scottish police of the naked walker who
walked from Land’s End to John O’Groats some years ago. I
think he deserved some sort of medal for walking in the Scottish
climate.
Ann
McKechin: That is a matter for the minority SNP-led
Government.
Mr.
Benyon: Returning to clothed matters and a very important
point, I do not believe that the Minister can go round claiming that
the Government have listened and yielded an independent right of appeal
if they have the right to overrule a decision in every circumstance. I
hear what the Minister says about the safeguards that have been put in
the Bill, but to introduce this amendment on Third Reading in another
place in a way that would allow a Secretary of State to overrule
decisions reached in a quasi-judicial process is fundamentally
wrong. I
will not press the issue at this point, because I want to reserve the
right to return to it on Report. I am doing so because the important
concerns raised by the pointy heads in another place who understand the
ECHR much better than I do are in direct conflict with the assertions
made by the Minister. I want to ensure that we are compliant with the
ECHR legislation, so we need to revisit the matter on
Report.
Ann
McKechin: I have had some inspiration on the issue of
naturists, and I can clarify that we have had meetings with naturists
to discuss their concerns. Natural England has also written to address
their concerns. I just want to put that on the
record.
Mr.
Benyon: I hope the Committee will spare my blushes on that
one, and I thank the Minister for her intervention. On the basis that
we will return to the matter at some later stage in the proceedings, I
beg leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Schedule
19 agreed to.
2.10
pm
Sitting
suspended for a Division in the
House 2.25
pm On
resuming—
Clause
297Access
to the coastal
margin
Mr.
Benyon: I beg to move amendment 50, in clause 297,
page 200, line 35, at end
insert— ‘(10) In Schedule 1,
Part 1, of the CROW Act 2000, after excepted land 13,
insert— “(14)
Land used for the purpose of manufacturing, maintenance or storage of
recreational vessels and equipment (including marinas, boatyards and
yacht
clubs).”’. Mr.
Charles Walker (Broxbourne) (Con): Hear,
hear.
Mr.
Benyon: With that endorsement ringing in my ears and a
sense of end-of-term fever, I rise to speak to the amendment, which
looks again at the issues relating to legitimate businesses around
coastal Britain. We hope to ensure that diversions are made around
commercial developments such as marinas, boatyards and yacht clubs,
because that is essential. Such sites operate heavy machinery
throughout the day, and that could pose a health and safety risk to
individuals. Furthermore, operational sites such as marinas may contain
high-value equipment that could cause a security risk as a result of
unrestricted
access. If
recreational boating facilities are not designated as excepted land
under schedule 1 to the CROW Act, there must be provision in the Bill
to exempt those sites and establish diversions around them. That is an
attempt neither to stop the path nor to limit walkers’ enjoyment
of the coast—in fact, in many cases, their enjoyment will be
enhanced, because they will be away from industrial and work
environments and will perhaps enjoy better views. The amendment would
ensure that safety and security are not compromised in the name of
access. Coastal access designation under the Bill should create a
pathway that passes those facilities, but not give powers to go through
operational sites.
Huw
Irranca-Davies: This response may seem like
dÃ(c)jà vu, but it is not. It is not even nuanced—it
is something quite different. We need to return initially to schedule 1
to the CROW Act, which, as I have said, contains a list of categories
of “excepted land”, which is not access land for the
purposes of section 2(1) of the Act. It means that there is no right of
access to such land under the provisions of the Act. I have listened
with interest to the concerns raised by the hon. Member for Newbury
about the possible location of the coastal access route as it affects
marinas and boatyards in particular. I also recognise that the other
place discussed the issue to some extent during its consideration of
the Bill. We in the Department have had a number of discussions with
boating and marina organisations, such as the British Marine Federation
and the Royal Yachting Association. I appreciate that they, too, are
worried about how the provisions might impact on their activities, so I
am glad that we have engaged with them extensively on such
matters. Before
turning to the specific points raised by amendment 50, I
wish to say that we have issued two papers that are particularly
relevant to our discussions, the first of which is about the new
section 3A order and the excepted land provisions required under the
Bill. It sets out the main measures that we expect the order to follow
and, in particular, our intentions for the various categories of
excepted land that we intend either to leave unchanged or to amend, as
they may apply to coastal land. I reconfirm our commitment to consult
further on the final contents of the section 3A order, which will be
subject to the affirmative resolution procedure for both Houses to
debate and agree. The order will not come into force unless it is
approved by such a resolution.
The second
paper is entitled “Accommodating future development
needs”. It sets out specific ways in which we can ensure that
coastal access is appropriate and consistent with the needs of
landowners, including future changes in land use. I hope that members
of the Committee will allow me just a few moments to explain in some
detail how we expect the provisions in the Bill and Natural
England’s scheme to affect marinas and boatyards. The excepted
land provisions under schedule 1 to the CROW Act set out the categories
of land that are excepted for CROW right of access, wherever they
occur. Lord
Davies of Oldham said during the debate in Committee in the other
place, in respect of marinas, that land such as
that “used
for the purposes of recreational boating facilities (including marinas,
boatyards and
clubs)” and
land used for
“or associated
with the use of, sporting
facilities” would “generally
be covered by the excepted land, buildings and their curtilage
provision” so
that there was no right of access to it.
He went on to
say: “If
it looked as though the buildings and curtilage provision did not make
those excepted areas, we would undertake further consultation to see
how to tackle that issue.”—[Official Report, House of
Lords, 30 March 2009; Vol. 709, c.
GC913-914.] Amendment
50 would extend the excepted land category to
land “used
for the purpose of manufacturing...or storage of recreational
vessels and equipment (including marinas, boatyards and yacht
clubs)”. Let
me be clear that we strongly hold the view that such land would
generally be covered by the excepted land, buildings and curtilage
provision. There is no fixed definition of curtilage, but when the open
access provisions of part I of the CROW Act were introduced, the
Department helpfully issued guidelines to help identify what was meant
by the excepted land categories, which are also in part I of the Act,
with the general caveat
that “guidelines
do not provide an authoritative interpretation of the legislation,
which is a matter for the
courts”. We
provided guidelines on the meaning of curtilage, which state:
“The
term ‘curtilage’ is not defined, but it generally means a
small area, forming part and parcel with the house or building to which
it is
attached”. It
is usually an area of land that is used, or that is intended to be
used, ancillary to that house or building. The guidelines also
state:
“In
most cases the extent of curtilage will be clear: typically, an
enclosure around a dwelling containing a garden, garage and side
passage; a walled enclosure outside a barn, or a collection of
buildings grouped around a farm house and farm
yard.” Most
people would understand—and understand in a legal
sense—what curtilage is. The guidelines were drawn up primarily
with open country in mind, and we will review them following the
passage of the Bill to ensure that they are appropriate for coastal
access provisions.
Mr.
Benyon: I just missed what the Minister said. To which
legislation do the guidelines refer?
Huw
Irranca-Davies: The guidelines were issued in respect of
part I of the CROW Act. When that measure was introduced, the
Department produced guidelines to make the meaning clear. We recognised
that there was no legislative or authoritative interpretation, and we
thought that it would be helpful to issue guidelines on
what we meant and how it could be interpreted. If the Bill is enacted,
we will review the guidelines to ensure that they are appropriate to
its coastal access provisions.
I recognise
the concerns that organisations such as the British Marine Federation
and the Royal Yachting Association have expressed, not least about
safety and security. For example, it could be necessary to keep the
public out of places where boats are stored. We have no intention of
seeking to interfere with the normal running of any marina or yacht
club or with the management of facilities. Those facilities are meant
to encourage visitors. We have to get this right: some marinas want to
encourage visitors to take advantage of public facilities such as bars,
restaurants and
shops. If
the route was on land that did not fall within the excepted land
category, which I mentioned, we expect Natural England to take full
account of the safety of visitors and the security of the site when it
proposes the position of the coastal route. If necessary, Natural
England will discuss with the owner or operator the possibility of
making a direction to exclude or restrict access when appropriate. For
example, it might be necessary to close the marina area at night, and
that could be done.
The
circumstances of any individual marina or boatyard will be considered
as part of a full and open consultation process led by Natural England,
which we have discussed in some detail. The discussions will consider
the most appropriate place to put the route on land that is not
excepted land, where it is necessary to ensure the continuity of the
coastal route. In doing so, Natural England and, in due course, the
Secretary of State, will be required under the Bill—as we keep
repeating—to
“aim to strike a
fair balance between the interests of the public...and the
interests of any person with a relevant interest in the
land”, as
set out in clause 291.
It may be in
the interests of the owners for routes to be situated close to a marina
or yacht club, as they recognise—some landowners and land
operators made this point to us—that it may provide them with
the economic opportunities that they want. The interests of those with
a relevant concern in affected land have been strengthened by the
introduction of schedule 1A to the National Parks and Access to the
Countryside Act 1949, as introduced by schedule 19 to the Bill, which
we debated earlier in our proceedings. The Secretary of State will make
a determination under section 52(1) of the 1949 Act on Natural
England’s coastal access report, having regard to any objections
that have been made, Natural England’s comments on them, any
representations forwarded to the appointed person, and the
recommendation of the appointed
person. As
we discussed earlier, in respect of any future developments of a
marina, boatyard or yacht club, the line of the route and the spreading
room are not permanently fixed. The Bill enables Natural England to
review them and propose changes to the Secretary of State, which will
again be subject to a full consultation and representation process at a
later date. The CROW Act is framed in such a way that it does not
prevent changes in land use, since land can become excepted from the
right of access at any time if some change or development occurs,
making it fall into one of the
categories of excepted land. I can confirm that if a proposal for a new
development on the coastal margin is made, Natural England will need to
consider an alternative route around the marina or boatyard. I can
reassure hon. Members that changes in use and future developments will
be taken into
account. Finally,
for the benefit of the Committee, I reiterate that Natural
England’s scheme will set out the approach it will take to
implement its coastal access duty. The scheme, I repeat, will be the
subject of full public consultation once the Bill becomes law. There
will be a further chance for those with a specific interest to make an
input into the final scheme, which has to be approved by the Secretary
of
State.
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