Select Committee on Environment, Food and Rural Affairs Ninth Report

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.[55] 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.[56] 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).[57]

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.[58] 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.[59] 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.[60]

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.[61] This view was supported by the Ramblers' Association.[62] 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.[63]

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.[64] 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.[65]

The CLA believed an "independent body (e.g. the Planning Inspectorate) should convene the right of appeal as is provided in the CROW Act".[66] 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.[67]

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.[68] 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".[69] The National Trust said a "more formal" appeals process could be beneficial.[70] 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.[71]

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.[72]

Our views

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

56   Ev 227 [Planning Inspectorate] Back

57   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

58   Defra, Coastal access: proposed order under section 3A of the Countryside and Rights of Way Act 2000, para 19. See Back

59   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

60   Ev 105-106, para 3 Back

61   Defra, Coastal access: proposed order under section 3A of the Countryside and Rights of Way Act 2000, para 19; Qq 70, 73. Back

62   Q 224 Back

63   Q 450 Back

64   For example, Bolitho Estates [Ev 141, para 19], Peter Tunstall-Behrens [Ev 137], Pentewan Sands Ltd [Ev 174, para 5.4]. Back

65   Ev 31, para 11.1 Back

66   Ev 31, para 11.2 Back

67   Q 114 Back

68   Ev 33, para 3; Q 144 Back

69   Q 346 Back

70   Q 161 Back

71   Ev 141, para 19; Ev 219, para 4.3; Ev 188, para 12; Ev 198, para 9; Ev 164; Ev 204, para 8.  Back

72   Q 144 Back

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