Memorandum submitted by the Countryside
Alliance (DMB 46)
The Countryside Alliance welcomes the opportunity
to submit to the Environment Food and Rural Affairs Select Committee's
inquiry into the coastal access provisions contained in Part 9
of the draft Marine Bill. The Alliance supports improved access
to the English coast but has always favoured an incentive driven
non-statutory and localised approach.
Accepting that there is a public benefit to
improved coastal access we agree with the Government's vision
and the potential benefits to users of the right and to local
communities and businesses. However, we also believe that there
are potential negatives in certain areas to existing users, local
residents and some businesses, as well as environmental concerns.
While public benefit may allow the state to give rights to everyone
at the expense of individuals, in doing so the state must tread
warily and respect, as far as possible, existing rights. We therefore
welcome the recognition in Natural England's draft Outline Scheme,
also reflected in the draft Bill, of the need to balance public
interest against existing rights. However, the current wording
in Clause 273(3) where the Secretary of State and Natural England
must "aim" at striking a fair balance between the public
interest in having access and the interests of any person with
a relevant interest in the land does not seem to be strongly worded
enough.
We believe that Part 9, as a statutory approach
to securing access, in general provides a workable framework of
statutory powers under the National Parks and Access to the Countryside
Act 1949 and the Countryside and Rights of Way Act 2000, that
will enable Natural England and the Secretary of State to deliver
on the Government's expressed policy objective. While we are encouraged
that Natural England's Outline Scheme places considerable emphasis
on the importance of locally responsive solutions in delivering
coastal access and that the existing rights of land managers,
shoots and businesses have been explicitly recognised, we believe
the Bill and associated documents need to strike a better balance
between giving public rights and protecting existing rights.
Should the Committee require any further clarification
of the points raised in our submission please do not hesitate
to contact me.
Simon Hart
Chief Executive, Countryside Alliance
EXECUTIVE SUMMARY
I. We accept that the draft Bill would achieve
the Government's policy objectives and is a reasonable and relatively
efficient method of doing so.
II. Given the importance of the Coastal
Access Scheme it is imperative that a full public consultation
should be a requirement on the face of the Bill. [Paragraph 3]
III. There is a very wide discretionary
power for Natural England to propose land as spreading room and
further power for the Secretary of State, to extend coastal margin
to include land, such as arable land, currently excepted under
the CROW Act. This is a very broad power and could undermine the
very basis on which CROW was agreed. [Paragraph 6]
IV. There is concern that currently excepted
land such as that within 20 metres of a dwelling, a building used
for housing livestock, and land used for training racehorses will
no longer be excepted land. While there may be situations where
it will be necessary to include such land so as to facilitate
the coastal trail, such land should in principle remain excepted.
[Paragraph 7]
V. The same restrictions in respect of dogs
should apply to coastal margin as to existing "open country"
under the CROW Act. [Paragraph 10]
VI. The disapplication of Section 22 of
CROW to coastal margin is unacceptable. Moreover, the power of
the Secretary of State to remove the right of appeal by order
should be removed from the draft Bill and a more limited application
of CROW Section 30 in respect of coastal margin should be put
on the face of the Bill. [Paragraph 11]
VII. Coastal access, whether used or not,
will by its very existence as a legal right, adversely affect
land and property values. Where there are negative impacts then
a scheme of compensation should be implemented. [Paragraph 14]
VIII. Cost of infrastructure and maintenance
must fall on Natural England and not the owner/occupier, except
where a structure would be required and maintained by an owner
in the normal course of his activity eg a fence for livestock.
[Paragraph 17]
IX. We doubt whether the costs or benefits
have been properly assessed. We believe that the cost estimates
of implementing and maintaining coastal access are a serious underestimate.
[Paragraph 20]
X. The proposals in the draft Bill and accompanying
documents do not give adequate consideration to shooting or wildfowling
and indeed other land management needs, especially in respect
of spreading room. [Appendix 1]
A. THE DRAFT
MARINE BILL—PART
9 COASTAL ACCESS
1. The draft Bill proposes a series of amendments
to the National Parks and Access to the Countryside Act 1949 and
the Countryside and Rights of Way Act 2000 (CROW) which provide
the necessary enabling powers for Natural England and the Secretary
of State to create a coastal margin with access rights on foot
around the English coast.
2. However, Part 9 of the draft Bill is
principally amending/enabling legislation and it is impossible
to comment on the full impact of these proposed powers and the
creation of the coastal margin and access rights without also
looking at two further draft documents. These are Natural England's
Outline Scheme and DEFRA's proposed Order under Section 3A of
the Countryside and Rights of Way Act 2000 as introduced by Clause
278 of the draft Bill. These additional documents provide a clearer
picture of how the powers of Part 9 of the draft Marine Bill would
be applied in practice and thus how the draft Bill will impact
on land managers and others where land is designated coastal margin.
Natural England Scheme—Clause 274
3. Given the importance of the coastal access
scheme which Natural England must prepare and Secretary of State
approve under Clause 274 of the draft Bill it is imperative that
a full public consultation should be a requirement on the face
of the Bill and not as drafted at 274(5) where Natural England
"must consult such persons as it considers appropriate".
While natural England have indicated that they would consult on
any scheme the wording of the draft Bill could be used to restrict
unduly the consultation process.
Coastal Access Reports—Clause 277
4. A similar concern about consultation
arises at Clause 277 in respect of the process required for the
preparation of reports applying the scheme in a particular locality
or stretch of coast. 55C(2) states that the Secretary of State
may by regulations require Natural England to advertise coastal
reports and receive representations etc. Similarly in 55C (3)
regulations under 55C(2) may include certain provisions concerning
the form and manner of any advertising etc. Based on the current
drafting it seems that consultation on a proposed report is not
compulsory at all stages. In both cases "may" ought
to be replaced by "shall" so that regulations are required
to be made and a full consultation is a requirement on Natural
England. This further consultation under 55C is vital where disagreement
exists between Natural England and an occupier to ensure that
any representations are duly considered both by Natural England
and the Secretary of State. This is particularly important as
the reports are required to contain any restrictions on the right
of access and will contain the extent of spreading room—see
comments below.
B. LAND TO
BE INCLUDED—SCOPE
5. The original proposals consulted upon
suggested a corridor of indeterminate width with areas of spreading
room in key areas such as headlands. The current proposals have
reversed this by creating a 4m wide (where possible) trail and
extensive spreading room along the entire length. These together
form the "coastal margin". All land to the seaward side
of trail is automatically included as spreading room under the
proposed order under 3A of CROW (introduced by Clause 278 of draft
Bill), unless excepted or restricted. There is, in our view, inadequate
consideration of where this leaves private beaches, sporting rights,
businesses and properties etc where privacy associated with coastal
land is a key asset of that business or a legally enforceable
right having value.
6. It also seems that spreading room on
the landward side may be extensive and in many areas up to a recognisable
physical feature. This could be a considerable distance inland
such as the edge of woodland, and could lead to conflict with
farming, shooting and other interests. There is also a danger
of doubt and confusion on the part of users unless the extent
of access rights are clearly marked and mapped. This is a very
broad power and could undermine the very basis on which CROW was
agreed. To extend coastal margin in this way would be deeply regrettable
and betrays both the principles behind the CROW Act and the proper
balance between the public interest and private rights. The Impact
Assessment notes at paragraph 24 "Some farmers are expected
to experience a loss of production from agricultural land... and
to require an increase in management effort". These losses
will not always be made up by alternative sources of income or
payments under CAP. This raises a serious question of compensation
and also whether it is right that the provisions for coastal margin
should undermine existing CROW provisions in respect of excepted
land as currently defined.
7. The proposed 3A Order also alters the
definition of excepted land under the CROW Act in respect of coastal
margin. There is understandable concern that currently excepted
land such as that within 20 metres of a dwelling, a building used
for housing livestock, and land used for training racehorses will
no longer be excepted land. While there may be situations where
it will be necessary to include such land so as to facilitate
the coastal trail (where no alternative route is possible) such
land should in principle remain excepted, subject to a caveat
of "no reasonably practical alternative", and only in
respect of the coastal trail (4 metres wide) and not in respect
of spreading room. This would allow a coastal trail to pass over
such land where necessary but not allow it to be classified as
general spreading room.
8. It should be noted that where existing
"open country" under the CROW Act, falls within land
classified as coastal margin it will now fall under the coastal
access regime and consequently will be subject to a different
regime, under the Bill as drafted, to that currently affecting
it. While we agree with DEFRA that it is important that land does
not fall under two differing regimes no consideration seems to
have been given to the costs of reclassifying and publishing the
changes in the status of this land or the differences in the regime
applying to it eg as proposed in respect of dogs. The current
maps will have to be updated and the public and landowners duly
notified. There will doubtless be confusion where coastal margin
abuts open country unless clearly marked and delineated. It seems
wrong that an occupier, whose "open country" is reclassified
as coastal margin, will lose many of the safeguards included in
the CROW Act. Thus the proposed regime for dogs is not as strict,
nor will the occupier be able to close land for shooting or other
land management purposes on a set number of days a year.
Saltmarsh and mudflats—See detailed comments
on wildfowling and shooting at Appendix 1
C. RESTRICTIONS,
CLOSURES AND
APPEALS
9. It would be tragic and ironic if increased
access to the coast destroyed the very thing which makes the coast
attractive for recreational purposes. Protecting vulnerable habitats
and important wildlife should be a priority and, where necessary,
take precedent over the right of access. We share the concerns
expressed by the RSPB and others over the possible impact of a
new right on birds and wildlife in ecologically sensitive areas,
and welcome the powers in the draft Bill which would allow closure
or restriction on the ground. Sadly, as the experience of many
owners and occupiers with access land under CROW in respect of
dogs has shown, there is a minority that will always forget that
rights come with responsibilities.
Dogs
10. The same restrictions in respect of
dogs should apply to coastal margin as to existing "open
country" under the CROW Act. Dogs should be on leads during
the breeding seasons for birds from 1 March to 31 July and in
the vicinity of livestock. The reasoning given in paragraph 21
of the proposed 3A Order does not seem adequate to justify a difference
in regime. According to the note at paragraph 21 "there are
different nature conservation considerations on the coast"
and dogs on a short lead in the vicinity of livestock is being
disapplied "because there may be situations on the coast
where it would be preferable not to have a dog on a lead if this
attracts danger to its owner". We would seek a fuller explanation
as to what is meant in both cases. It would seem the risk of disturbance
by dogs of breeding birds and the need to protect livestock is
as great on coastal margin as open country, especially given the
potential extent of spreading room in addition to the trail.
Disapplication of Section 22 CROW and Rights of
Appeal under Section 30 of CROW
11. The disapplication of Section 22 of
CROW to coastal margin is unacceptable. There may be an argument
for limiting closure to spreading room but not the trail. Occupiers
must have the right to restrict access in cases where for example
woodland which is designated the edge of "spreading room"
is used for shooting. However there may be a wide variety of reasons
why an occupier may wish to close land for a certain number of
days a year. In striking the balance between public interest and
private rights it would seem only right that the same ability
to close land, at least spreading room if not the actual trail,
is in respect of coastal margin the same as for open country.
It should be noted again that there will be areas of existing
open country which are reclassified as coastal margin.
12. Similarly it is imperative that where
a person with an interest in land seeks to add or alter a restriction
applying to coastal margin under CROW then he should enjoy the
same rights of appeal under Section 30 of CROW as in respect of
open country. We understand the importance, set out by DEFRA in
paragraph 19 of the proposed 3A Order, of ensuring that any restrictions
on the right of access should be negotiated and agreed as part
of the preparation and approval of the report which Natural England
must submit to the Secretary of State in creating the coastal
trail and spreading room. It is imperative that those with an
interest in coastal margin participate fully in this process.
We accept that the current requirements in respect of consultation
etc in the preparation of the report and the involvement of the
Secretary of State set out in Clause 55c of Clause 277, mirrors
closely the appeals process set out in Section 30 of CROW. However,
we do not believe it is right that the proposed Section 3A order
(as allowed for by virtue of Clause 278(5)(c) would entirely remove
the right of those with an interest in land to appeal to the Secretary
of State against a refusal by Natural England to impose a restriction
etc where due to a change in circumstances a further a restriction
or change in restriction is required by the land manager. The
same right of appeal under Section 30 should apply to coastal
margin as to open country. The draft Bill should be amended to
ensure that where a person, having an interest in land (being
coastal margin), and that person is the same person as had that
interest at the time the original right etc was agreed and he
participated fully in that process, wants to alter the restriction
etc relating to that land he should have a right of appeal under
Section 30 against a refusal by Natural England. A similar right
should apply absolutely to a person having an interest in land
who did not have that interest at the time of the original implementation.
This provision would act as a powerful incentive to land managers
etc to participate in the original process, but allow for changes
of ownership, land use or other circumstances. It is not good
enough for the right of appeal to be removed and for DEFRA to
say that "subsequent changes to the situation can be dealt
with by exclusions or restrictions given by Natural England in
the usual way. Where is the process of appeal against Natural
England's use of its powers? The power of the secretary of State
to remove that right of appeal by order should be removed from
the draft Bill and the more limited application of CROW Section
30 in respect of coastal margin should be put on the face of the
Bill.
See detailed comments on wildfowling and shooting
including potential abuse of new rights by animal rights activists
at Appendix 1
D. IMPACT AND
COMPENSATION
13. The cost benefit to local communities
and businesses is far from certain as much will depend on whether
this new right and the coastal route and margin will in fact result
in more people walking the English coast and also in areas where
they have not previously done so. This is heavily dependent on
access to the coastal margin, transport costs and distances from
areas of population density etc. as confirmed by Natural England's
Open Access Monitoring Report 2006, published September 2007.
14. That coastal access, whether used or
not, will by its very existence as a legal right, adversely affect
land and property values in some areas is undoubted and where
there are negative impacts that are not compensated for by additional
benefits then a scheme of compensation must be implemented. This
also arises in respect of sporting rights as a legal interest
in the land.
15. Compensation as a potential issue is
acknowledged 5.3.3 of Natural England's Outline Scheme: "We
are currently considering what approach should be taken in circumstances
where an entry charge is currently levied for access of the types
that would be newly provided under the legislation"
16. Coastal access unlike existing access
under CROW in respect of open country impacts more directly on
key assets of businesses where ownership of coastal land, beach
etc constitutes a very immediate asset to that business and where
the interference represented by the new right of access, assuming
it will be as popular as the Government supposes, will have a
direct and negative impact on such businesses where privacy, the
view, tranquillity etc are assets of that business. It has also
been noted above that the extension of coastal margin to certain
types of land excepted under CROW, such as arable land, will have
a direct impact on farmers. The Impact Assessment notes at paragraph
24 "Some farmers are expected to experience a loss of production
from agricultural land..., and to require an increase in management
effort". These losses will not always be made up by alternative
sources of income/benefits resulting from the new access right
or other payments such as those under CAP. This raises a serious
question of compensation and we would suggest human rights.
17. Cost of infrastructure and maintenance
must fall on Natural England and not the owner/occupier, except
where a structure would be required and maintained by an owner
in the normal course of his activity eg a fence for livestock.
This is also important in terms of liability, because if it is
unclear who is responsible for provision or maintenance it may
affect any liability of owner/occupier who retains some degree
of liability in relation to "reckless or deliberate acts
or omissions". Would an occupier be liable for damage or
injury arising from failure to carry out maintenance? What is
the situation where a wildfowling club has created structures
to enable its members to gain access to the marsh, such as bridges
or walkways, would the cost of maintenance fall to Natural England
now the public has a right of access and would a club be liable
for any injury or accident occurring to a member of the public
using the bridge or walkway? The situation must be clear on face
of the legislation, especially as the coastal environment is intrinsically
more hazardous and changes more rapidly than open country.
E. COST/BENEFIT
ANALYSIS
18. We are unaware of any firm data into
the impact of CROW and whether CROW has in fact resulted in greater
use of access land for recreational purposes or whether the opening
up the 30% of the coast currently without access will in fact
result in any significant increase in coastal recreation. The
only assessment to date of the impact of CROW is Natural England's
Open Access Annual Report 2006, published September 2007, and
as that report notes its findings only provide a baseline against
which future reports can be compared. There is also no agreed
set of data of the situation prior to CROW against which the 2006
data might be compared.
19. While there may be less of an appeals
aspect to cost in implementing and maintaining coastal access,
the process of surveying, negotiating and identifying the new
coastal margin is a huge undertaking and there must be some rights
of appeal against the inclusion of land in any report submitted
to the Secretary of State.
20. We remain unconvinced that the budgets
are sufficient and would draw the attention of the Committee to
the budgetary experience of the introduction of access under the
CROW Act as discussed in the House of Commons Committee of Public
Accounts Thirty-second Report of Session 2006-07: The right of
access to open countryside.
F. LIABILITY
21. The Countryside Alliance welcomes the
reduction of liability as set out in the draft Bill subject to
the clarifications sought above in respect of infrastructure and
maintenance.
APPENDIX 1
WILDFOWLING AND SHOOTING
BACKGROUND
1. The continuing extension of public access
to the countryside has been a matter of great concern to the shooting
community. Access to mountain, moor, heath and down under the
Countryside and Rights of Way Act 2000 has had a significant impact
upon game shooting, and especially grouse shooting. The rolling
out of public access to coastal land is likely to affect wildfowling
(the shooting of ducks, geese and waders), much of which occurs
in coastal areas, as well as formal and rough shooting.
2. While a great deal of concern has been
expressed by shooters over the Government's proposals for coastal
access this has, to some extent, taken place in a vacuum. It is
thus enormously welcome that Natural England have published their
Outline Scheme at the same time as the draft Marine Bill and that
Natural England recognises the status both of formal game shooting
and wildfowling/rough shooting.
3. The particular problems which shooting/wildfowling
is likely to experience are disturbance, public safety and disruption.
Added to this is the fact that where exclusive rights are presently
granted by sporting leases, those rights will to a greater or
lesser extent be compromised by public access, potentially leading
to a reduction in the value of those rights (and thus potentially
in the land itself).
4. In its initial report to DEFRA Natural
England indicated that public access to mudflat and saltmarsh
(the two primary habitat types for coastal wildfowling) was likely
to be excluded and noted a number of the concerns shared by wildfowlers
over disturbance and public safety. Natural England stated that
access to these areas "would be complicated" and access
to these areas "should not be a national priority in its
own right." Wildfowlers would endorse these comments. However,
in the Outline Scheme this position has been qualified so that
"areas of flats and saltmarsh will normally be spreading
room, whether seaward or landward of the trail". However,
the Outline Scheme goes on to state that Natural England will
use its powers to exclude access from such habitat types where
they are regarded as unsuitable. While this may give some comfort
to the wildfowler, so far as the public is concerned one piece
of saltmarsh looks much like another. Very clear guidance will
be needed to ensure that walkers understand the distinction between
"suitable" saltmarsh/mudflat and "unsuitable"
salt marsh/mudflat.
5. A further difficulty arises where one
habitat type grades into another. For example, beaches (especially
shingle or shell beaches) will sometimes grade into saltmarsh
or mudflat. If the saltmarsh or mudflat is of the "unsuitable"
variety, then a boundary line will have to be drawn between it
and the beach. Natural England has not addressed the question
of delineation of different but adjacent habitat types in the
present Outline Scheme.
6. We do however welcome Natural England's
powers to exclude access, where saltmarsh or mudflat is deemed
unsuitable for public access. These are not only sensitive and
precious habitats but also dangerous places. Moreover, large areas
are owned and managed by wildfowling clubs and the rights of those
clubs must be respected. We would suggest that public access is
actively directed away from salt marsh and mudflat. This would
significantly reduce potential conflict with wildfowling and protect
public safety.
CONFLICT BETWEEN
WILDFOWLING AND
COASTAL ACCESS
7. It is estimated that there are 71,000
participants in coastal wildfowling (PACEC 2006) although the
"core" wildfowling population comprises the membership
of some 220 specialist wildfowling clubs, numbering around 13,000
individuals. Wildfowling is a relatively inexpensive activity
and therefore a shooting activity more accessible to those on
lower incomes. Wildfowlers manage over 105,000 hectares of coastal
land, in excess of 90% of which lies within SSSIs. Wildfowling
is recognised as a significant positive force for conservation
both by statutory agencies and by voluntary conservation organisations.
8. Wildfowling is constrained in both a
spatial and temporal sense. Shooting of wildfowl is of necessity
restricted to wetlands where migratory ducks, geese and waders
naturally occur, or to the areas immediately adjacent to these
wetlands over which birds fly at certain times of the day or night
to feed or roost. Shooting is regulated by statutory close seasons
(1 February to 31 August above High Water Mark of Ordinary Spring
Tides (HWMOST), 21 February to 31 August below HWMOST). Furthermore,
since wildfowl are crepuscular in nature, most shooting occurs
around dawn and dusk. However, significant movement of birds is
occasioned by certain conditions of tide and moon, and thus "tide
flighting" and "moon flighting" may occur outside
these times. Likewise, favourable shooting conditions will occur
during periods of extreme weather such as frost, snow, gales or
fog.
9. It follows that any potential conflict
between wildfowling and public access to the coast is likely to
occur on those parts of the coast which are important for migratory
wildfowl (principally saltings, mudflats and wet grazing marshes)
during the autumn and winter months at dawn and dusk. In areas
of high human population density (such as the south and south
east of England) public access pressure is likely to be greatest,
but it should be presumed that as a result of the Government's
proposals there would be a generally increased access to all parts
of the coast.
DISTURBANCE TO
WILDFOWL
10. Successful wildfowling requires the
shooter to be within close range (40m or less) of wild birds.
Wildfowlers thus employ strategies to minimise disturbance (concealment,
use of camouflage) which prevent birds from being alarmed by the
presence of a hunter. They also use decoys to draw birds towards
their shooting positions. Wildfowlers try to avoid moving around
on the marsh during flight time, since the disturbance caused
by the sound of a shotgun is far less than that caused by the
visible presence of a human figure. While a wildfowler concealed
in a creek or hide causes little disturbance to wildfowl beyond
his immediate area, a single walker along the sea wall is quite
likely to clear wildfowl from a large part of the marsh or foreshore.
11. Increased presence of human activity
within or adjacent to wildfowling areas is liable to cause increased
levels of disturbance to wildfowl, especially since that activity
is likely to involve walkers, often dressed in high visibility
clothing, together with their dogs. Wildfowling success is likely
to decrease as a result. Similar considerations apply to conservation
and refuge areas set aside by wildfowling clubs. At present, these
are left undisturbed except for essential management activities
or distribution of feed. In many cases such conservation areas
will be above the sea wall on freshwater ponds and marshes, rather
than on salt marsh or foreshore, and it is not clear whether such
areas would be regarded as areas to which Natural England has
indicated that access may be sought.
12. Clearly, the same issue affects nature
reserves owned or managed by bodies such as the Royal Society
for the Protection of Birds, Wildfowl and Wetlands Trust and the
Wildlife Trusts. Open public access to coastal wetlands of high
importance for nature conservation would inevitably increase disturbance
to wildfowl, a concern which is shared by wildfowlers and conservation
organisations alike.
THE "WILDERNESS"
FACTOR
13. Wildfowling is a solitary sport, often
undertaken in remote places at dawn or dusk. Many prime wildfowling
locations are wild and undeveloped and represent significant areas
of "wilderness" even though they may be geographically
quite close to major towns, cities or conurbations. As with angling,
much of the pleasure of wildfowling derives more from experiencing
the relaxation of being alone with wild creatures in wild places
than with filling the bag. This pleasure is of course equally
enjoyed by those seeking access. Increased public access is likely
to erode the sense of wilderness, both for wildfowlers and walkers.
HEALTH AND
SAFETY IMPLICATIONS
14. Many of the areas over which wildfowling
takes place are inherently dangerous. In particular, salt marshes
and foreshores present danger from soft mud and fast running tides.
Wildfowling clubs take great care to ensure that their members
are taught the rules of marsh safety. They employ probationary
membership or mentoring systems whereby newcomers are only allowed
on the marsh in the company of experienced wildfowlers. Wildfowling
clubs conduct detailed risk assessments under existing health
and safety legislation. Moreover, wildfowlers are well equipped
with suitable footwear (waders) and warm, weatherproof clothing.
The occasions on which wildfowlers get into difficulties on the
marsh are few and far between, although they do occur.
15. Members of the public are unlikely to
be as well prepared or well dressed, and they are unlikely to
have access to mentors with experience of the marsh or local tidal
conditions. The opportunity for accidents—including fatal
accidents—is likely to be very significantly increased if
members of the public have greater access to salt marshes and
foreshores.
16. Wildfowling involves shooting with shotguns
which will discharge pellets over ranges up to some 300 metres.
Shooting is an extremely safe sport, and gun safety is an inherent
part of the induction process within wildfowling clubs—and
indeed for shooters generally. However, public access within areas
where shooting is taking place must carry with it the increased
risk of accidents. On existing open access land, managers may
prevent access on a limited number of days when shooting is taking
place. The solitary and opportunist nature of wildfowling makes
it impractical to close wildfowling marshes on predetermined days.
Neither is it practical for wildfowlers to post warning signs
whilst shooting is taking place.
INTERFERENCE WITH
WILDFOWLING/SHOOTING
BY ANIMAL
RIGHTS ACTIVISTS
17. Attacks by animal rights extremists
upon wildfowling are rare, however, they regularly occur in some
areas. Activists often operate from public rights of way or other
areas with public access, especially where police action has effectively
warned them off private land. There is concern that legal rights
to access over land used for wildfowling/shooting will enable
activists to confront wildfowlers at close quarters. Wildfowling/shooting
clubs instruct shooters to make safe their shotgun and put it
in a gun slip if such an incident occurs, but the danger of an
activist gaining possession of a wildfowler's gun is of great
concern. Not only does it place the shooter in significant personal
danger, but it also potentially places him in breach of condition
4a of his shotgun certificate (insofar as access to the gun has
been gained by an unauthorised person).
18. Under Schedule 2 paragraph 1 (q) and
(r) of the CROW Act a person who [paragraph 1(q)] "in relation
to any lawful activity which persons are engaging in or are about
to engage in on that or adjoining land, does anything which is
intended by him to have the effect of intimidating those persons
so as to deter them or any of them from engaging in that activity,
of obstructing that activity, or of disrupting that activity,"
or [paragraph 1(r)] "without reasonable excuse, does anything
which (whether or not intended by him to have the effect mentioned
in paragraph (q)) disturbs, annoys or obstructs any persons engaged
in a lawful activity on the land", that person ceases to
be entitled to be on open country or coastal margin and becomes
a trespasser. Consequently he may not within 72 hours after leaving
that land exercise his right of access to that land or land in
the same ownership.
19. We welcome the continued application
of this provision to coastal margin both trail and spreading room.
However, the problem arises that unlike a public right of way
which only gives the right to pass and re-pass, coastal margin
gives people the right to be on land. This is a potential gift
to animal rights protestors who when disrupting shooting, wildfowling
or other activity could claim they are entitled to be on land
and disrupt an activity because they believe it is not lawful
and therefore not covered by CROW Schedule 2 paragraph 1 (q) and
(r). It is essential that there is a clear presumption that an
activity is lawful and that if a person who is opposed to shooting,
or other activity, believes that activity is not lawful, he should
call the police not be entitled to use the right of access to
coastal margin, and spreading room in particular (or indeed open
country), to disrupt those activities on the basis of his belief.
Any disruption of wildfowling or shooting however brief can destroy
the shoot, or day, and the damage has been done. The owner suffers
the disruption and loss while the protestor(s) simply move on
and can return 72 hours later. This is also another reason why
the continued application of Section 22 of CROW is so important,
at the very least with respect to spreading room.
20. Moreover, Section 2 of the CROW Act
defines "owner" as the tenant where the land is tenanted
under Agricultural tenancies Act 1995 or Agricultural Holdings
Act 1986. Despite the fact that Schedule 2 paragraph 1(q) extends
to adjoining land there appears to be no provision made in respect
of sporting leases and licences which are not granted under Agricultural
Holdings legislation. This omission would, in theory, mean that
where multiple ownership/occupancy exists, a protestor who is
asked to quit land because his actions mean that he is not entitled
to be on land under S2(1) could not re-enter that land for 72
hours but could immediately re-enter adjoining land in a different
"ownership".
21. Consider, for example two adjoining
blocks of land. One belongs to owner "A" and one to
owner "B". Shoot "C" has a sporting lease
over both blocks of land. A protestor enters onto the block belonging
to "A" and disrupts C's shooting. By his actions he
becomes a trespasser under Schedule 2 (1)(q) and may be asked
to quit the land belonging to "A". Thereafter:
"he may not, within 72 hours after leaving
that land, exercise his right under subsection (1) to enter that
land again or to enter other land in the same ownership".
It seems clear that the Act does not prohibit
the protestor who has been ordered off the land belonging to "A"
from immediately entering upon that belonging to "B",
despite the fact that shoot C enjoys the sporting rights over
both blocks. This means that the shoot is obliged to go through
the same ordering off procedure in relation to the second block
of land (and possibly a third or a fourth). It is hard enough
for an owner or shooting tenant who seeks to order a protestor
off even one piece of land, let alone two or three. This could
be remedied if the definition of "owner" were to be
extended or, preferably, replaced with the word "occupier"
as defined under the Wildlife & Countryside Act 1981 (which
would cover lessees and licence holders). This would cater for
the situation where there are adjoining ownerships but where only
one lessee or licencee of the sporting rights having an interest
in the land.
ENJOYMENT OF
PROPERTY RIGHTS
22. Wildfowling only takes place (in England
& Wales) where sporting rights are owned, leased or otherwise
held by licence of some sort. Those holding the sporting rights
will frequently have paid substantial amounts of money to acquire
them. The freehold value of salt marsh may be in the region of
£1,500 per acre, while freshwater marsh above the sea wall
may be valued at twice this figure or more. Frequently high conservation
grade wetland commands prices well in excess of arable farmland.
Thus wildfowlers and wildfowling clubs may have spent very significant
sums in the acquisition of private marsh in order that sporting
opportunity may be enjoyed. The value of those assets will be
significantly eroded if public access is permitted, possibly to
the extent that the original purpose for which the land was acquired
may no longer be viable. This principle applies equally where
freshwater marsh, saltmarsh or foreshore is leased, and where
the landowner's assets are devalued. It is noted that the Government
intends a general presumption against compensation for devaluation
of property rights.
FORMAL AND
ROUGH SHOOTING
23. So far as formal shooting is concerned,
the outline scheme indicates that the "trail" would
be aligned to the seaward side of land or woods used for game
shooting, and that "spreading room" would not extend
into those woods. Disturbance will impact upon formal game shooting,
though Natural England has indicated that game coverts will normally
be excluded from "spreading room". Natural England recognises
that it may be necessary to manage the passage of walkers while
shooting is taking place or to introduce diversions. First impressions
might indicate that access would be no more onerous than the presence
of a public footpath adjacent to a drive. Indeed, if a shoot is
permitted to divert the trail—perhaps for the duration of
the shoot day or even the particular drive—then this gives
it more flexibility than in the case of a public footpath, on
which the public must be permitted to pass and re-pass at all
times. The difficulty is in the "spreading room" which
will allow public access to potentially wide areas of land adjacent
to game coverts. Unlike a trail, this "spreading room"
cannot be diverted.
24. Natural England recognises both that
spreading room will encompass areas of land used for rough shooting,
and that the ad hoc nature of rough shooting will mean that temporary
diversion is not an option. There is clearly potential for conflict
with rough shooting.
25. Even if the owner or occupier cannot
close the trail using Section 22 of CROW he should be able to
close the spreading room under Section 22. It is thus unacceptable
that recourse to Section 22 on the part of owners of coastal margin
is wholly removed by the Government's proposed 3A Order under
Clause 278.
26. When they have exclusive occupancy of
land, shooters are in the best position to ensure that bystanders
are located away from danger zones or fall-out areas. This is
not the case when members of the public have access to shooting
areas while shooting is being carried out (and wildfowling and
rough shooting may be carried out at any time). Natural England
recognise the public safety implications of this, but throw the
burden back on the shooters, indicating that they will have to
take necessary precautions in line with voluntary codes of practice.
27. In most cases, members of the public
will probably avoid shooters where they can see that shooting
is taking place. However, this would not be the case with committed
animal rights protestors. Clearly the access granted to them by
the "spreading room" concept is a gift which would enable
them to confront and disrupt shooters with great ease. This matter
has not been tackled by Natural England and at the very least
there must be some formula which safeguards the rights of those
who are carrying out lawful recreational or land management practices
over coastal land. Not least the continued application of Section
22 of the CROW Act in respect of coastal margin, at least with
respect to spreading room if not the trail itself.
28. It has been observed that land values
may well be affected by these proposals. It remains to be seen
how much they are affected. Furthermore it remains to be seen
whether rental values for sporting rights (including leases granted
to wildfowling clubs by the Crown Estate across Crown foreshore)
will change. Any significant losses must be compensated.
CONCLUSION
29. The proposals in the draft Bill and
accompanying documents do not give adequate consideration to shooting
or wildfowling and indeed other land management needs, especially
in respect of spreading room. If the Bill is to strike a balance
between the public interest and existing rights then the coastal
margin should be subject to a regime more similar to that under
CROW for open country which contains some essential safeguards
to protect sporting rights. It is regrettable that as drafted
the Bill could undermine Labour's public commitment to shooting.
Countryside Alliance
May 2008
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