Memorandum submitted by the Environment
Agency (DMB 68)
SUMMARY
The Environment Agency welcomes the Draft Marine
Bill and its proposals to introduce a new strategic and streamlined
management framework for our marine environment, including strengthened
protection of our marine biodiversity interests.
With respect to the clauses on coastal access:
— We support proposals to increase
coastal access.
— We have some concerns about how the
proposals will affect our flood risk and coastal erosion responsibilities
but are working with Natural England and Defra to agree how these
can be resolved.
— We are uncertain at present about
how the legislation set out in the draft Bill will affect our
ability to regulate and enforce byelaws associated with flood
risk and coastal erosion management.
— The operational nature of some flood
risk and coastal erosion sites and facilities means they should
be excluded from access provision, or exempted from some of those
provisions.
— We would like to see more clarity
in the legislation on arrangements and responsibility for closing
the route when necessary.
— To ensure flood risk is not inadvertently
increased as a result of new structures created to provide access,
we should be consulted on those structures.
— To ensure that the Scheme under which
access is delivered recognises our concerns, clause 274 (5) of
the draft Bill should stipulate that Natural England (NE) consult
with us on the creation of the Scheme.
— The Bill would need to include other
management and maintenance considerations if uses other than walking
were proposed.
— We would like to see a more flexible
approach to the location of the coastal route in estuaries.
1.0 INTRODUCTION
1.1 The Environment Agency is the leading
public body for protecting and improving the environment in England
and Wales. We have a major role in the sustainable management
of our coasts, sea and estuaries around England and Wales. Our
wide remit puts us in a unique position to protect and manage
the marine environment.
1.2 We manage flood risk and erosion on
the coast and, as from April 2008, we have the Strategic Overview
of the English coast. The Strategic Overview is a new way of working
between Government, the Environment Agency, Local Authorities
and coastal flooding groups to improve the sustainability, prioritisation
and management of all work on the coast. Whilst the Environment
Agency has the overview, close collaborative working with Local
Authorities on the coast is essential to ensure vital skills and
expertise is used effectively for communities in need.
1.3 There are over 4,400km of coast defences
and coast protection on the English and Welsh coast (mainly on
the English coast), all of which will be incorporated into Shoreline
Management Planning, which we now oversee. We maintain 1,250km
of these defences, although we plan to withdraw maintenance on
between 5 and 10% of them as they become economically unviable.
1.4 On coastal flooding, we know that changing
weather patterns as a result of climate change will alter the
nature and geography of the English coastline. The 2004 Office
of Science and Technology Foresight report "Future Flooding"
identified the risks posed by coastal flooding and erosion in
the future. It flagged that by the 2080s, sea-level rise could
increase the risk of coastal flooding by four to 10 times and
approximately one-third of existing coastal defences could be
destroyed.
1.5 Many of the existing flood risk and
coastal erosion structures already have some access to them. Wherever
appropriate we ensure that land we manage is available for access.
When we move coastal defences through realignment we have, often
in partnership with others, been able to significantly improve
access in some places.
1.6 We also have a role to control polluting
discharges, look after the quality of our bathing waters, manage
stocks of salmon, sea trout and eels, regulate sea fisheries in
a large number of estuaries, protect wildlife and habitats and
promote recreation. We are Competent Authority for several EC
Directives, including the Water Framework Directive that sets
new ecological objectives for inland waters, estuaries and coastal
waters (to one nautical mile) and we monitor and report on the
quality of the environment.
2.0 OUR RESPONSES
TO QUESTIONS
POSED BY
THIS INQUIRY.
2.1 The Government's vision for coastal access,
and the extent to which the Draft Bill provides for it
2.1.1 We support the vision.
2.1.2 We have some concerns about how the
proposals will affect our flood risk and coastal erosion responsibilities
but are working with Natural England and Defra to agree how these
can be overcome.
2.2 Whether new legislation is the best or
most cost-effective means of providing increased access to the
coast
2.2.1 70% of the coast already has some
form of access. It should be possible to increase this using the
existing legislation but it would be unlikely to completely deliver
the Government's aspirations for coastal access.
2.3 The case for exceptions to, and deviations
from, a route giving continuous access to the coast itself
2.3.1 Some sites used for flood risk and
coastal erosion management need to be excluded from access provision
or exempted from some of those provisions. The operational nature
of some sites means that they are not suitable for access, for
example shingle borrow pits where aggregate is extracted. Without
exceptions or deviations people could be put at danger. In other
cases, there will be structures such as sluices and tide gates
that are dangerous in nature and need to have access excluded
from them.
2.3.2 An example is Winestead Booster, in
the Humber Estuary. Here a pumping station is located across the
end of a drain. An access platform crosses the drain, but it has
an automated weed-screen attached to it. The weed-screen is liable
to start without warning and when it does, access is restricted.
The other side can be reached but requires a diversion of over
a kilometre in-land.
2.3.3 Not all management activities are
continuous, such as the cutting of grass on flood banks. Access
needs to be restricted when these activities are taking place.
Whilst the draft Bill is clear about the creation of the route
it does not set out who will have the duty for, and take responsibility
for, closing the route when required. We believe responsibility
should be set out in clause 277 (inserting a new section 55(G)
of the 1949 Act). Alternatively the Bill could include the powers
for regulations to be made to cover this issue.
2.3.4 Similarly, the Environment Agency
must have a formal role advising Natural England on how it exercises
clause 272 55a (4), which makes provision for the route to be
changed as a result of coastal erosion and sea encroachment.
2.3.5 With our overview role for the strategic
management of the coast we are best placed to advise Natural England
on which flood risk and coastal erosion management sites should
and should not be included in open access and identify when they
should be taken out, or excluded from the route. This needs to
be recognised in clause 272 in reference to Part 1 of the CROW
Act.
2.3.6 We need to understand how the new
legislation will work with our existing byelaws, and byelaw making
powers, which in some cases are used to control access. At the
moment it is not clear how these will operate in parallel with
the new access provisions set out in the draft Bill.
2.3.7 The Bill would be improved by providing
clarity on what happens during, and after, emergencies, such as
breaches in coastal defences. At the moment the draft Bill does
not set out how these events will be managed and who will have
the duty to close a route. This is a concern for us as at these
times, as sites become dangerous operational areas when work is
taking place to protect people and property. Similarly, there
are times when we have to close barriers to keep tides out and
this can be across access points.
2.3.8 For example, where we have access
gates through our defences they must be closed before high spring
tide levels. Public access is then prevented and, there is the
risk of trapping the public on the wrong side of the defence.
2.3.9 To create the route, it will be necessary
to put some structures in place, such as steps or bridges. To
ensure the route is used properly and safely, signage will be
required. This is covered in clauses 281 and 248.
2.3.10 Whilst the draft Bill addresses the
need to talk to owners and occupiers about the installation of
infrastructure it does not mention the need for consenting these
structures. We need to be consulted about any facilities that
may impact on the integrity of a flood risk and coastal erosion
management structure. Furthermore, consent may be required. Clauses
281 and 284 need to include reference to existing consenting requirements.
2.3.11 To ensure that the Scheme under which
access is delivered recognises our concerns, clause 274(5) should
say that Natural England (NE) must consult with us on the creation
of the Scheme. We should also be able to make submissions to the
Secretary of State, identifying our concerns, if consensus cannot
be reached on a relevant aspect of the proposed scheme.
2.3.12 We welcome our inclusion as consultees
in the creation of reports under clause 277, 55B(4)(g) but it
should read "any interest in flood risk and coastal erosion
management which may be affected" to reflect our new role
on coastal erosion (see para 1.2 above).
2.4 Whether the Draft Bill strikes the right
balance between the rights of access and the rights of owners
and occupiers, and whether there should be compensation in any
circumstances for the creation of coastal access rights
2.4.1 As explained above, even though we
do not own or occupy defences, our flood risk and coastal erosion
interests will be an essential factor in determining the location,
design and maintenance of the route.
2.5 The proposals for coastal access in estuaries
2.5.1 Estuaries often present complicated
issues for flood risk and coastal erosion. Because of their funnelling
effect the difference in water level between high and low tides
can be significant. The Severn Estuary has the second highest
tidal range in the world, sometimes over 15m, which creates a
flow rate of up to 8 knots. The same conditions can pose safety
concerns for visitors.
2.5.2 Estuaries are also places of immense
beauty and give visitors the opportunity to enjoy wild places
and their associated nature. In some, where defences are no longer
maintained and they are returned to natural processes, access
can be lost.
2.5.3 Using the first crossing point as
the inland limit of coastal access provides a simple rule and
would restrict the safety issue described above. However, there
may be some places where access could be continued, and replaced,
beyond the first crossing. A more flexible approach to estuaries
would allow access lost due to sea level rise and erosion to be
replaced through the legislation, as is proposed on the seaward
side of the first crossing. Therefore, we would like to see clause
276 giving more flexibility to the application of the legislation
in estuaries.
2.6 What classes of land should be excepted
from access rights?
2.6.1 Some flood risk and coastal erosion
management structures and sites may need to be regarded as excepted
land. The Bill could make a general provision for this. If this
is not done we would need to rely on working with Natural England
on their recommendations on the route. Either is acceptable to
us but clause 277 (inserting new section 55(G) of the 1949 Act)
must set out how closures will happen and who has the duty to
make the closures and enforce them.
2.6.2 An example where we need structures
to be excluded or have the option of closure is Winchelsea Beach,
near the Harbour of Rye, where between September and March we
manage the coastal erosion by continually moving shingle from
one part of the foreshore to another. Whilst there is some access
and use of this area, making it open access would create significant
flood risk management operational issues. Here we would need the
area to be totally excluded or for it to have access restricted
when we are working there. A similar situation exists at Minehead
where we clear the sand from the wave return wall twice a year.
2.7 The proposed arrangements for limiting
liability
2.7.1 We carry occupiers' liability because
we either own or operate structures, therefore the reduced liability
is welcomed.
2.7.2 However, whilst we will have reduced
liability, those who put the route in place will, under draft
clause 287, have no duty of care. Whilst the draft Bill sets out
that routes should be identified that are "safe" we
question whether it is right that those who put them in place
on other people's land should carry no responsibility for what
they have done.
2.7.3 In some cases increased access will
impact on our management of sites as we operate or maintain them.
In these instances we will be working under the Health and Safety
at Work Act 1974. Section 3 of that Act sets out responsibilities
to "persons other than their employees" and this is
where any liability arising from those using access rights will
be determined. Therefore, reduced liability under the Occupiers'
Liability Act 1984 becomes irrelevant.
2.8 Whether there should be access rights
for other users such as cyclists or horse riders
2.8.1 We do not envisage significant impacts
on the structure and integrity of flood risk and coastal erosion
management sites by people accessing the land on foot, although,
as experience shows, where many people access a site at a specific
point erosion issues can occur and we will always need to be aware
of this possibility, especially if predicted visitor numbers are
realised.
2.8.2 In places we already have byelaws
that restrict the use of flood banks and specifically exclude
horses. Their use of flood banks has already been identified as
an issue. These byelaws would need to be taken into consideration
if additional access was added to the Bill.
2.8.3 We would be looking for the inclusion
of further management and maintenance considerations in the Bill
if other uses were going to be allowed. Surfaces and structures
would need to be reinforced and someone would need the responsibility
to do that work. The integrity of flood defences is obviously
critical and allowing other uses may adversely impact on them.
Someone would need the duty to be responsible for the maintenance
of any adverse impacts, possibly the local Highways Authority.
2.8.4 Where we allow Sustrans to put cycle
routes on our structures we have permissive path agreements with
them. These ensure that responsibility for any impact by cyclists
is the responsibility of Sustrans.
3.0 CONCLUSION
3.1 In conclusion, we support the new legislation
to increase access, and the benefits it will bring to society
and the economy. We are working with Natural England to resolve
the areas of concern we have to ensure there are no adverse impacts
on the management of flood risk and coastal erosion and on important
conservation sites.
Environment Agency
May 2008
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