6 Compensation |
47. The draft Bill contains no statutory power
to compensate occupiers for potential loss of privacy, enjoyment
and use of land. This follows the advice given by Natural England
to Government in 2007 that there should be a "working presumption
against paying compensation for public access along the coast".
In its written evidence, Natural England said that compensation
should not be necessary because any adverse effects on property
owners and land managers from the proposals would be kept to an
"absolute minimum", partly because of the negotiations
that will take place with owners/occupiers prior to alignment
of the route and spreading room. It said that "[L]egal consideration
that we and Defra have given to the matter since the submission
of our advice in February 2007 reinforces this view [
compensation should not be payable in respect of the coastal rights
created or secured by the Bill."
Natural England added in oral evidence, however, that "[
the subject of compensation is a matter for Government".
48. Many organisations and individuals submitting
evidence believed compensation should be paid in certain circumstances.
The CLA provided several examples in its written evidence which
it said demonstrated businesses and property owners stood to lose
from the proposals (for example, a Cumbrian golf course, and a
large coastal holiday house in Cornwall which could suffer an
estimated loss of capital value at 10%).
The NFU said it understood the general policy of no compensation,
but says there were "many examples" where a proposed
coastal route would cause "both direct and indirect loss
of income or land" and "adequate compensation"
would be required in those circumstances".
Other witnesses, including the National Trust, Cumbria County
Council and the Cumbria Local Access Forum, and Devon County Council,
also all said compensation should be payable in certain defined
instances. The Ramblers'
Association also acknowledged it would "support compensation
being paid in the case of demonstrable and significant losses"although
it added that such circumstances were "hard to envisage".
The Royal Institution of Chartered Surveyors told us that:
The draft bill does not strike the right balance
between rights of access and the rights of owners and occupiers.
The RICS believes that insufficient attention is paid to the principle
of fair and equitable treatment to landowners and occupiers (in
accordance with the Human Rights Act and European Convention on
Human Rights) and that more research should be undertaken on the
question of compensation. This should include dialogue with the
Valuation Office Agency so that business disturbance levels (including
farming) can be assessed as well as the impact on capital values
of land and property. The RICS believes that further research
needs to be undertaken before any decision is taken on compensation.
Another issue which should be taken into account
is the impact on farming caused by the introduction of a right
to compulsory access. Once more, this will not necessarily be
offset by the 'generic' benefits previously mentioned by the government
and may impact upon the capital values of land and property (both
business and residential).
49. Defra does acknowledge that some landowners
and businesses are likely to be affected financially. In its Impact
Assessment of the proposals, it states:
- There are likely to be some
residential properties that would command a lower value were public
access rights to be created on or across part of the property
- There may be a negative impact on the small number
of businesses which derive competitive benefit from availability
of exclusive access.
In both cases, Defra said that careful alignment
should ensure such impacts were minimised.
50. Although there are no provisions for compensation
in the Draft Bill, it would not be impossible for Natural England
to provide some form of ex gratia compensation in particular circumstances
outside the express provisions of the Bill, should it wish to
do so. Natural England did say in oral evidence that compensation
should not "normally" be necessary, but subsequently
confirmed it was "not expecting there to be circumstances
where our implementation proposals would warrant compensation".
51. Article 1 of Protocol No. 1 to the European
Convention on Human Rights states that the right of every natural
or legal person to peaceful enjoyment of their possessions will
not "in any way impair the right of a state to enforce such
laws as it deems necessary to control the use of property in accordance
with the general interest". Assuming that in a particular
case the loss of use of land is not considered de facto expropriationi.e.
that it is considered a 'control of use' casethere is no
absolute right to compensation. In its written evidence, Defra
maintains that providing coastal access would represent "control
of use" of private land, and not acquisition.
52. Defra and Natural England clearly believe
that there is no case for paying compensation merely for a loss
of privacy, enjoyment and use of land required for the extension
of coastal access. In general we agree.
53. The CLA told us that it would not be easy
to prove a loss of value.
But it is conceivable that there may be cases where a person is
able clearly to demonstrate a financial loss as a result of the
coastal access provisions. We know that Natural England intends
to work closely with property owners in order to align the route
carefully and sensitively when it seeks a fair balance between
the interests of the public and those of owners or occupiers of
the land concerned, but it may prove to be impossible to align
a route along the coast without causing financial loss to an owner
or occupier. In such cases, the lack of a power to give compensation
will make it very difficult for Natural England to achieve the
fair balance it is required to secure. Natural England may be
able offer compensation under its existing powers, but this would
be an irregular way of doing things and would be likely to favour
those people with access to the most expensive professional advice.
Any system of compensation should be transparent and consistent.
The Bill should give Natural
England the power to offer compensation to owners and occupiers
who can demonstrate financial loss as a result of the coastal
access provisions where such compensation is necessary to achieve
the fair balance between public and private interests that the
73 Natural England, Improving Coastal Access: Our
Advice to Government, February 2007, para 19 Back
Ev 3, paras 21-23 Back
Q 59 Back
Ev 28, paras 4.2-4.3 Back
Ev 35, paras 18-19 Back
Ev 53, Executive Summary; Ev 91, para 4; Ev 93, para 5. Back
Ev 75, para 6.5 Back
Ev 170, section 4 Back
Draft Marine Bill [Impact Assessment], Defra, April 2008,
pp 112 and 119 Back
Q 60; Ev 24 (DMB 56c), para 3. Back
Ev 106, para 3, Q4 Back
Q 148 Back