Memorandum submitted by the Charities'
Property Association (DMB 36)
WHO WE
ARE
1. The Charities' Property Association (CPA)
represents charities which own and manage rural and urban property
as investments. The Association has over 100 members, including
several Oxford and Cambridge colleges, some of the English cathedrals
and dioceses and various charities that own amenity land in trust.
Our membership also includes the National Trust (which, we understand,
is submitting an individual memorandum). We welcome the opportunity
to comment on the Government's proposals on coastal access.
COASTAL ACCESS:
THE GENERAL
PRINCIPLE
2. The Committee's press notice mentions
specifically the case for exceptions to, and deviations from,
a route giving continuous access to the coast itself and asks
whether the draft Bill strikes the right balance between rights
of access and rights of owners and occupiers and whether there
should be compensation in any circumstances for the creation of
coastal access rights.
3. We note that the consultation document
says at paragraph 4.9 that
[Natural England] and the Secretary of
State for Defra will be under a duty to strike a fair balance
between the interests of the public in acquiring a right of access
and the interests of any owner or occupier of land over which
the new right would apply. The right of access will be subject
to restrictions or exclusions, for example, for nature conservation
or land management purposes, although these will be somewhat different
from those applicable to existing CROW access land, reflecting
different conditions on the coast
4. We welcome the exclusions for nature
conservation and land management purposes; however, we are not
convinced that the Bill necessarily strikes the right balance
between access and ownership. We would hope that sensible legal
mechanisms can be established which, together with practical management
on the ground, will ensure that a right of access can be exercised
without undue interference to owner/occupier rights. However,
the Bill seems to be proposing that, in extremis, a charitable
owner's property rights could be removed without compensation.
5. It is difficult to contest the principle
of acquisition of coastal access rights if the acquisition is
deemed to be in the public interest; but it is entirely wrong
that these should be acquired without compensation. Those who
gave the property in the first place (or who gave the resources
that enabled the charity to acquire the property) did so with
the intention that their gifts would be used for the objects of
the charity in question. What is proposed is a species of expropriation;
and that is quite contrary to what we understand to be the rationale
behind English charity law. It is particularly difficult to defend
expropriation from charities that exist to support the community
at large.
6. We welcome the proposal that access improvements
will be locally negotiated and delivered on the grounds that local
negotiation will enable particular concerns to be fully considered
and taken into account. However, we share the concern of the National
Trust that if this is to happen within a reasonable time-frame,
Natural England and local authorities, as the access authority,
must be adequately resourced.
OCCUPIER'S
LIABILITY
7. We note with approval that the draft
legislation removes occupier's liability both in respect of any
natural feature and in respect of any non-natural feature. We
accept that this should be subject to the proviso that the occupier
has not acted intentionally or recklessly in respect of a known
danger; but as paragraph 4.12 of the consultation document points
out "The coast is a dangerous environment"—and
we trust that this provision will not be watered down in any way
during the process of consultation and legislation.
RIDERS AND
CYCLISTS
8. We are unconvinced that routes that are
at present only accessible on foot should be opened up to riders
and cyclists. This is particularly the case in respect of churches
and churchyards on the coast. The vast majority of churchyards
(of whatever denomination) are already accessible by the public;
however, some of them are still open for burials and most of them
have been used as burial-grounds in the past. We feel that it
would be inappropriate for them to be used as cycle routes or
bridle paths.
Helen Donoghue
Secretary, The Charities' Property Association
May 2008
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