5 Appeal process |
39. It is not intended that any formal appeal
process regarding exclusions and restrictions be available under
the current coastal access proposals. The lack of a formal appeals
process differs from other access legislation. The Highways Act
1980 allows for a Public Path Creation Order to be examined by
the Planning Inspectorate if a landowner makes an objection.
Section 30 of the CROW Act 2000 gives landowners a right to appeal
against the relevant authority (currently Natural England) to
the Secretary of State, again, administered by the Planning Inspectorate.
Only a total of 21 appeals have been made under section 30 of
the CROW Act, of which seven were wholly or partially successful.
However, a further 3,172 appeals were made under section 6 of
the Act against the provisional mapping of land as registered
common land or open country (such mapping will not be done in
the case of coastal access).
40. Clause 278(5) of the draft Marine Bill inserts
a new section 3A into the CROW Act, which allows the Secretary
of State to specify, by Order, that the section 30 appeal mechanism
for exclusions and restrictions under the CROW Act does not apply
in the case of coastal margin. Defra have already produced a draft
of this Order, which confirms that the section 30 appeal mechanism
will not apply. Instead,
the Government has decided to employ what it describes as the
"lighter procedure" used for the 1949 Act, whereby people
with an interest in the land are given opportunity to make representations
to the Secretary of State if they wish to object to Natural England's
proposals. The Secretary
of State will be under a duty to consider those representations,
and has power under section 52(1) of the 1949 Act to propose modifications
to the route should he consider that the privacy of landowners
has been adversely affected.
41. Both Defra and Natural England believed that
the 1949 Act "representations" to the Secretary of State
mechanism was sufficient and that the CROW Act appeal process
with the Planning Inspectorate was unnecessary for these proposals,
partly because Natural England would undertake more extensive
negotiations with landowners and occupiers prior to the alignment
of the route and spreading room and would seek to avoid any serious
intrusions into the privacy of landowners.
This view was supported by the Ramblers' Association.
The Minister said "we do not want to go down the Planning
Inspectorate route", which, he believed, "did not help
very much with CROW". Under the proposed system, he said,
MPs would be able to make queries, and obtain answers, directly
to, and from, the Secretary of State about specific exclusions
and restrictions in their constituencies. This had not been possible
with the CROW Act because the Secretary of State first had to
wait for a decision by the Planning Inspectorate.
42. Many witnesses were dissatisfied with the
lack of an "independent" appeal process. Several said
that this omission severely curtailed the Government's aim to
strike a fair balance between private and public interests.
The CLA said:
The whole process from the drafting of the legislation
and preparation of the scheme through to its implementation on
the ground is controlled entirely by Defra and its agency. For
this reason it is a necessity for there to be a right of appeal
by the landowner or occupier aggrieved as a result of the impact
on his business or property.
The CLA believed an "independent body (e.g.
the Planning Inspectorate) should convene the right of appeal
as is provided in the CROW Act".
In oral evidence, it expanded on this point:
What concerns us is that Natural England will get
very frustrated by the difficulty of getting a corridor through
[an area] because of one particular business, [
] and they
will just say, "Okay, the footpath has got to go there and
that is that". What we are saying is that it needs more thought,
it needs an independent mind to see whether the landowner is pulling
the wool or whether Natural England are pushing it further than
they should. Obviously, Natural England wants to complete this
path because that is what they are charged with doing, and the
landowner or the rural or coastal business does not want to be
out of pocket as a result of it. It seems to me a classic argument
for having an independent appeal process.
43. The NFU also believed there needed to be
"some provision for appeal where there are substantial disagreements
between Natural England and those with an interest in the land,
or where businesses and properties are compromised". It pointed
out that very few appeals had been made by farmers under section
30 of the CROW Act, which it believed showed it worked.
Devon County Council said a proper right of appeal would be "important"
for landowners because "they want to be able to have their
opportunity to make sure their concerns are aired publicly".
The National Trust said a "more formal" appeals process
could be beneficial.
Bolitho Estates, the Historic Houses Association, the Countryside
Alliance, Devon Countryside Access Forum, Lord Montagu and Ralph
Montagu, and the British Holiday Homes and Parks Association all
also wanted the inclusion of a formal appeal process.
44. We note that the lack of a third-party appeal
process may mean land owners consider their only recourse to be
judicial review, if they believe they have not received a fair
hearing and that the route unfairly prejudices their interests.
The CLA agreed this eventuality could occur without the option
of an "independent" appeal process.
45. The lack of a formal appeal
process is a fundamental weakness of the Bill. As
it stands, Defra and Natural England have control of the whole
process from policy development to implementation on the ground.
Neither organisation has provided us with a convincing explanation
why there cannot be a proper third-party appeal process as well
as a requirement for consultation with landowners and occupiers.
We consider the right of landowners and occupiers to have an independent,
third-party appeal process to be an important element of the fair
balance between public and private interests that the Government
is aiming to achieve. The Bill should provide for such a process.
46. Should an appeal process
be allowed, the Government should ensure the costs involved with
using it are minimised.
55 Q 120 Back
Ev 227 [Planning Inspectorate] Back
The mapping was a one-off exercise, and the appeal process was
again administered by the Planning Inspectorate., Three quarters
of the 3,172 mapping appeals were wholly or partially successful.
This led to the removal of some 2% of the total area that had
been provisionally mapped by the Countryside Agency (Ev 23 (DMB
56b) [Natural England]). Back
Defra, Coastal access: proposed order under section 3A of the
Countryside and Rights of Way Act 2000, para 19. See http://www.defra.gov.uk/marine. Back
Ev 107-108, para 5. Under the current 1949 Act procedure, a proposal
for a long distance route, once approved, goes to the highways
authority to create a legal right of way under the Highways Act
1980; an approved proposal is not itself creating a right of way. Back
Ev 105-106, para 3 Back
Defra, Coastal access: proposed order under section 3A of the
Countryside and Rights of Way Act 2000, para 19; Qq 70, 73. Back
Q 224 Back
Q 450 Back
For example, Bolitho Estates [Ev 141, para 19], Peter Tunstall-Behrens
[Ev 137], Pentewan Sands Ltd [Ev 174, para 5.4]. Back
Ev 31, para 11.1 Back
Ev 31, para 11.2 Back
Q 114 Back
Ev 33, para 3; Q 144 Back
Q 346 Back
Q 161 Back
Ev 141, para 19; Ev 219, para 4.3; Ev 188, para 12; Ev 198, para
9; Ev 164; Ev 204, para 8. Back
Q 144 Back