Joint Committee on the Draft Marine Bill

Joint Committee on the Draft Marine Bill First Report

10 Coastal Access

204. As we mentioned in our introduction, the EFRA Committee carried out an inquiry into Part 9 of the draft Bill.[483] Although we took evidence on the subject of coastal access, we are aware that the EFRA Committee was able to devote far greater attention to the subject, and that its Report covers the issue in greater detail than we do here. We were able to make use of the evidence submitted to the EFRA Committee in our consideration of the Bill.

205. Defra included improved coastal access in its Five Year Strategy of December 2004 and in April 2005, the Labour Party made an election manifesto commitment to improve coastal access.[484] The proposals for delivering coastal access will enable a coastal route and accompanying access land for outdoor recreation ("spreading room") by combining the long-distance route proposals under the National Parks and Access to the Countryside Act 1949 ("the 1949 Act") and the access provisions of the Countryside and Rights of Way Act 2000 ("the CROW Act"). Natural England (NE) will be responsible for negotiating the route and spreading room with interested owners, occupiers and businesses, for subsequently proposing the path and spreading room (with any exemptions or restrictions) to the Secretary of State for designation, and for implementing access in practice.

The principle of a continuous English coastal path

206. The policy paper quotes the Government's union of a "coastal environment", including "rights to walk along the length of the English coast".[485] Most of the evidence was supportive of improved coastal access, with many submissions citing the health benefits to users and the economic benefits to coastal areas.[486] Some local authorities and Devon Countryside Access Forum said that in their experience, a commitment to improve coastal access, such as through better transport links and resolving gaps in existing paths, would be a more effective focus than a commitment to a coastal route.[487] The Country Land and Business Association (CLA) and the National Farmers' Union said the Government and Natural England had not shown evidence of a demand for a continuous route.[488] The Government commissioned a poll by Ipsos Mori in 2006 which found that "nine per cent of respondents said they would visit the coast more regularly if a clear path existed around the coast" and "six per cent said they would visit more regularly if more area access were available".[489] The Ramblers'' Association noted that these figures are for those who "would definitely visit more often" and that the same report found that 37 per cent of those surveyed would like to visit the coast more if there was a continuous path.[490] The CLA quotes the same report's summary and conclusions: "overall, there appears to be good access to the coast" and "indeed, many questioned the need for new paths and areas, and would prefer to see budgets prioritising the maintenance of the current paths and facilities".[491] Natural England and the Ramblers' Association strongly supported the principle of a continuous coastal path, noting that although 70 per cent of the coast is currently accessible, there are many breaks in the paths which currently inhibit its enjoyment.[492] The Ramblers' Association said "it is vitally important that the route is continuous"[493] because it would give the public the "security" of knowing that they can go anywhere on the coast and have access.[494] We welcome the principle of increased access to the coast and that of the 'spreading room' for outdoor, coastal recreation.

207. There are however limits on what is practically achievable, given the number of inevitable interruptions to the path, and we do have concerns about whether unrealistic expectations have been created by the description of a continuous coastal path. The MoD has an exemption wherever necessary, though it told us "the number of exemptions that we are actually looking for on the face of the Bill are really very small—we are talking about three or four areas where we have some concerns".[495] Eroding coast and flood risk may present a safety and practicality problem—the EFRA Committee heard evidence from the National Farmers' Union (NFU) and CLA of some areas of coast eroding at the rate of 20m per year[496] and other evidence from local authorities of extremely rapid rates on the South West Path and elsewhere.[497] While the draft Bill provides for 'rollback' of the coastal path to accommodate erosion, it is clear that in some areas erosion will make it difficult or very expensive, and may make it inappropriate, to facilitate coastal access.[498]

208. Estuaries are exempt from access under the draft Bill unless the Secretary of State orders otherwise in particular cases. The intention is that, where possible, the coastal path will follow the first crossing and back to the coast. Natural England accept that where the first crossing is a very long way inland access will simply not be possible. Witnesses broadly agreed that this is the right approach.[499] There will also be sensitive habitats which require either permanent or seasonal restriction of access.[500] The other main interruption to the path will come in the form of commercial businesses and private properties, of which there are many along the coast, in contrast to other types of access land under CROW.[501] The number of industrial installations, such as ports, and of parks and gardens around the coast makes it difficult to see how the aim in the draft Bill of keeping the route close to the coast and with views of the sea can be realised in all cases. Despite the difficulties facing the alignment of the path, we think the aim of a continuous coastal route around the length of the English coast is laudable. We support the intention of Natural England and Defra to ensure so far as is possible the continuity of the path.

The exemption of parks and gardens

209. Natural England, as the body responsible for delivery of coastal access, and specifically for negotiating exemptions and restrictions with owners and occupiers and proposing the route, told us that it wanted the parks and gardens blanket exemption lifted for coastal access, not in order to impose access through small, private gardens, but to provide the capacity to negotiate access through large parks and gardens.[502] Natural England's position has caused concern for the CLA and NFU.[503] The Historic Houses Association has also expressed concern.[504]

210. The Government has said that the blanket exclusion for parks and gardens under CROW will remain for coastal margin land. The capacity for people to 'dedicate' land under CROW and for voluntary arrangements for access through private land remains.[505] When pressed in oral evidence before the EFRA Committee on whether the Government might change its mind on this point, the Minister said "we have published the Bill, how much more explicit would you have us be […] I am here saying parks and gardens are exempted".[506] He further said that he took the decision to exclude parks and gardens because there would be problems defining them, and that their inclusion "would generate a great deal of uncertainty and […] legal challenge".[507] He repeated that conclusion in evidence to us, though he pointed out that if Natural England "come up against a park or garden the landowner will be able to consent to his or her park or garden being part of the route; they can get engaged and be involved if they want to, but clearly if they do not then the route will have to go round".[508]

211. Some of us were not clear why exemptions for large parks are necessary, and saw merit in Natural England's view that the current blanket 'parks and gardens' exemption may be too wide. Others felt that the exemption should remain as it stands. We also note that informal negotiation regarding individual cases has proved effective in Scotland, following the passing of the Land Reform (Scotland) Act 2003 which gave the public the 'right to roam'. We support the need to ensure that individuals' property rights and privacy are protected. The majority of us felt that the Government should give careful thought to what is included in the 'parks and gardens' exemption, but this was not the view of all; some welcomed the exemption as it stands. This is clearly an issue to which Parliament will wish to return when the Bill is introduced. But in any event we encourage the Government and Natural England to co-operate with owners and occupiers in voluntary agreements outwith the legislation.

Independent appeals process

212. The Bill contains no mechanism for appeal against decisions by the Secretary of State to designate land as coastal margin. The CROW appeals mechanism regarding mapping will not apply as there is no mapping process and Defra has confirmed that the Secretary of State intends to use powers in the Bill to disapply the CROW appeals mechanism for exclusions and restrictions. Under the draft Bill, the Secretary of State may by regulation make provision for interested persons or organisations "to be given an opportunity to make representations to Natural England about matters which relate to coastal access reports and are of a kind specified in the regulations".[509] In preparing its recommendation on the route, Natural England must consider the representations and send a copy of them to the Secretary of State, who must also consider them when deciding whether to approve the proposal.[510] Evidence from the CLA and NFU strongly argued for the need for an independent appeals mechanism, suggesting that the current mechanism under CROW using the Planning Inspectorate works well.[511] Other witnesses supported the need for an independent appeals mechanism as exists in CROW and other access legislation, such as the Highways Act 1980.[512]

213. The only legal redress for dissatisfied owners and occupiers in the absence of such an appeals mechanism will be judicial review. The representations process in the Bill does not provide for any 'third party' consideration or independent appeals process. Even the CROW appeals mechanisms would not provide this if applied in its current form to the coastal access provisions, as the Secretary of State would be both designating land (including exclusions and restrictions) and then deciding an appeal on that designation.[513] Further thought is therefore needed to ensure that costly recourse to judicial review is not the only option to challenge the alignment, spreading room and exclusions and restrictions. We recommend that the designation of the route and spreading room, and decisions on exclusions and restrictions, be subject to an independent appeals mechanism.

Compensation

214. There is no express provision in the draft Bill for compensation for owners and occupiers where loss is suffered due to their land being designated coastal margin land and therefore accessible to the public. The Government insists there will be no compensation available, saying it will not be needed because Natural England will consult and negotiate fully with owners and occupiers. On the other hand, Natural England has said compensation will "not normally" be necessary,[514] and the Ramblers' Association implied they thought there may be payments in some cases.[515] It is therefore unclear what the compensation situation will be in practice but it seems there will be no transparent scheme to govern when and how compensation should be paid. If the Government intends to make payments of any kind for those suffering loss from the designation of the coastal route, there must be an open and transparent process.

215. Most interested parties agreed that compensation should be available in particular cases of demonstrable loss, but there was also agreement that there should not be a presumption of compensation for all owners and occupiers.[516] Some noted that the absence of the availability of compensation may make "a positive partnership approach" between Natural England and owners difficult to engender.[517] Existing coastal access has been negotiated with the availability of compensation, for example in respect of the South West Path[518] and the Essex Coast Environmentally Sensitive Area.[519] We agree that compensation should not normally be payable, and support the intention of the Government and Natural England to align the route carefully to avoid conflict.

Costs

216. Much of the evidence received, including that from local authorities, predicted that the allocation of £50 million over 10 years will be insufficient to fund the proposed scheme,[520] and queried that there was sufficient provision set aside for on-going maintenance, even in the first 10 years, let alone beyond that.[521] Local authorities are concerned that they will be responsible for maintenance, but will not receive adequate funding in the medium to long term.[522] The budgeted £50 million over 10 years is to come out of Natural England's existing budget, but neither we nor the EFRA Committee heard any evidence on what currently funded programmes will lose priority to enable coastal access. There is no detailed breakdown in the Impact Assessment to enable us to scrutinise how funding has been allocated and whether maintenance has been properly provided for. Local Authorities noted this when attempting to assess whether the budget would be sufficient—as Devon County Council said "it depends what it covers".[523] In response, the Government said that that the figures were "robust" and that it trusted Natural England's calculations.[524] We note the widespread concern that the estimated funding of £50 million over 10 years for the coastal path is inadequate and that local authorities may be left with the significant maintenance costs. We recommend that the Government produce a detailed estimate of the costs of both establishing and maintaining the coastal path, and subject this analysis to concerned parties for consultation.