Memorandum submitted by Natural England
(DMB 56)
CONTENTS
— Summary of our evidence.
— Comparison of the coastal access
provisions with our 2007 advice.
— Possible exclusion of all parks and
gardens from the arrangements.
— Outline views on the aspects highlighted
by the Committee.
ALREADY CIRCULATED
TO THE
COMMITTEE
— Natural England's Outline Scheme
for coastal access (April 2008)[1]
ATTACHED
— Natural England's advice to Government
(February 2007)[2]
SUMMARY OF
OUR EVIDENCE
1. Natural England strongly supports the
introduction of the rights of access to the English coast proposed
by Part 9 of the Draft Marine Bill. We have worked closely with
the Defra officials responsible for developing these draft legislative
provisions. We welcome the Committee's invitation to submit evidence
about the draft Bill.
2. In our advice to Government on this subject,
submitted in February 2007, we recommended that in order to realise
its vision for improving access to the English coast:
"Government should legislate to create an
approach that combines the best features of existing mechanisms—giving
Natural England customised powers to make sense of the unique
coastal situation, and to ensure the necessary flexibility to
take account of the circumstances on each section of the coast".
3. We believe that by combining and adapting
existing powers to create a long-distance route around the coast
complemented by "open" access rights over appropriate
areas of land en route, the provisions of the Draft Bill would
effectively implement our recommendations.
4. In addition to our outline views on the
issues specifically raised by the Committee, we wish to draw its
attention to the practical difficulties potentially raised by
the possible legal exclusion of all coastal parks and gardens,
whatever their size or circumstances, from the scope of the new
rights.
5. The Draft Bill makes provision for Natural
England to publish a coastal access scheme, approved by the Secretary
of State, to guide the local implementation of the coastal access
rights. We published in April a first outline of this Scheme,
to help inform consideration of the Draft Bill during the period
of pre-legislative scrutiny. Committee members have already received
a copy of this Outline Scheme.
COMPARISON OF
THE COASTAL
ACCESS PROVISIONS
WITH OUR
2007 ADVICE
6. The Committee may wish, in considering
the coastal access provisions in the Draft Marine Bill, to compare
them with our February 2007 advice to Government. This section
compares the provisions with the summary of proposals published
with our 2007 advice.
"Government should legislate to create a
new approach to access, tailored to the circumstances of the coast".
7. In our view the Draft Bill meets the
overarching requirement for a tailored approach to coastal access.
In particular, it would enable activity to be shaped and targeted
according to local circumstances, and with due regard to any specific
sensitivities on each section, and to coastal change.
"Legislation should create statutory powers
for Natural England to align a coastal access corridor around
the whole English coast, to create access where it does not exist
and improve it where it needs improving, and to repeat this process
later on any stretch of coast where we considered it necessary.
We would not interfere on stretches of coast where secure good
quality access already exists".
8. Our view is that the first objective
proposed in clause 272(2) (together with its associated provisions)
would deliver the outcome we envisaged: a secure pedestrian route
along the whole length of the coast that is subject to a minimum
of interruption.
9. It would also enable Natural England
to target activity to improve access, making use of existing public
rights where these are satisfactory: see clause 272(5)(b) and
(c), and the proposed new section 55A(2) of the 1949 National
Parks and Access to the Countryside Act ("the 1949 Act").
10. Section 55F of the 1949 Act relates
to powers to recommend variations to the coastal access provisions.
These would allow us to return to any stretch of coast where we
considered it necessary, for example where the coast line is expected
to change as a result of managed realignment.
"The access corridor would include new areas
of spreading room along the coast, and could also formalise existing
beach access".
11. The second statutory objective, set
out in clause 272(3), would enable us to deliver this spreading
room on appropriate sections of coast. In particular, land seaward
of the trail would be treated as spreading room unless we proposed
to exclude it from the operation of the access rights, or unless
it was of a type treated by the primary legislation and associated
order as excepted land.
"All Natural England's powers would be exercised
under a statutory methodology, approved by the Secretary of State".
12. Clause 274 proposes such a document,
which it refers to as "the coastal access scheme". A
first outline of our Scheme, based on the provisions of the Draft
Bill, has already been circulated to Committee Members.
"there would be a right of appeal against
any failure to act in accordance with the statutory methodology".
13. The planned local consultations about
the alignment of the trail and associated issues would often lead
to agreement about the right approach to improving access on particular
sections of coast. Where this does not prove possible, land owners
and occupiers would be able to make representations to the Secretary
of State against any particular aspects of our proposals that
they consider could be improved. The proposed new section 55C
of the 1949 Act would provide for this, and enable third party
adjudication on Natural England's proposals and the views expressed
about them. We particularly welcome the "one pass" approach
under which all relevant issues and factors would be considered
at the same time.
"Natural England would undertake nature
conservation assessments as part of the planning process, to avoid
damage to any features of importance".
14. In Section 4.7 of our Outline Scheme,
we explain how we will factor effective protection of nature conservation
interests into the coastal access alignment process. This would
include all assessments necessary to meet our obligations under
European law.
15. The Draft Bill would enable us to protect
the coastal environment in a customised way, by enabling the route
to be aligned in ways that take account of local sensitivities,
and by enabling the use of access restrictions and exclusions
where less formal means of managing coastal access rights will
not meet the need.
"Natural England would undertake much of
the planning and implementation through access authorities, where
they were willing to take it on. We would do it ourselves where
the access authority were unwilling to act. We would fund the
necessary work irrespective of who undertook it".
16. We continue to see access authorities
as key partners in the planning and implementation of the coastal
access rights. We would retain overall responsibility for the
final recommendations to the Secretary of State, under the coastal
access duty in clause 272.
17. The Draft Bill facilitates this approach.
It provides access authorities with new powers to complement those
they already have under CROW Part I Chapter III to carry out the
necessary establishment works, and for Natural England to fund
these (see clauses 280 to 283). The same clauses would enable
Natural England to carry out establishment work which, in line
with our advice, we would treat as reserve powers, for use in
cases where the authority were unwilling to act.
"Local solutions would be designed in consultation
with local interests, including local access forums and land managers".
18. The consultation provisions under the
proposed new section 55B(4) of the 1949 Act would put local interests
at the heart of the alignment process. They would be able for
example to comment on the alignment of the trail, on inclusion
or exclusion of areas of land as spreading room, and on any requirement
for exclusions, restrictions or diversions.
19. In practice, the access authority or
Natural England would "walk the course" with occupiers
or their representatives wherever practicable, to hear such views
at first hand so that they can be fully taken into account when
drawing up the formal proposals.
"This would require an implementation programme
which we provisionally estimate would cost an average of around
5 million pounds per year over the 10 year creation phase. Work
is continuing to refine these cost estimates".
20. We continue to see this provisional
estimate of costs as robust. A detailed national audit of existing
coastal access arrangements, which is scheduled to finish in spring
2009, will provide a further opportunity to test these cost assumptions.
"There should be a working presumption against
paying compensation for public access along the coast, but we
are undertaking further work on this issue".
21. We welcome the explicit aim in clause
273(3) to strike a fair balance between the public's interest
in having rights of access over land, and the rights of owners
and occupiers. As stated above, we also support the right for
land owners and occupiers to make representations regarding Natural
England's proposals, and the requirement for the Secretary of
State to consider these before making a decision about the final
arrangements.
22. Taken with the associated provisions
enabling the locally sensitive alignment of the access rights
that we recommended to Government, this approach will in our view
keep to an absolute minimum any adverse effects on property owners
and land managers. Natural England will make available the funding
necessary for physical establishment works such as steps, bridges
and appropriate signs, notices and waymarkers.
23. In the light of all these factors, we
continue to support the Government's view that compensation should
not be payable in relation to the creation or securing of coastal
access rights proposed by the draft Bill. Legal consideration
that we and Defra have given to the matter since the submission
of our advice in February 2007 reinforces this view.
The reduced level of occupiers "liability
introduced for CROW Act access land should apply to coastal access".
24. Clause 288 of the Draft Bill not only
provides for this reduced level of liability, but extends the
principle with respect to all physical features. We warmly welcome
this change. The hand of man is widely evident along the coast
and in our view it would be wrong for occupiers to be liable for
injury or loss because it is somehow connected with a man-made
feature—whether it be a rope, a disused mineral working
or a quayside. People need to be prepared to accept a greater
level of personal responsibility for their safety, and that of
their children or other dependents, in return for improved rights
of access. We intend to reinforce this message strongly in our
public guidance on the new arrangements in due course.
"There is a need for complementary work,
by Natural England and others, to enhance coastal landscapes and
wildlife".
25. Enhancement of the coastal environment,
although not part of the statutory coastal access provisions,
is a core element of Natural England's vision for the coast. We
will publish separate, non-statutory criteria in due course to
guide this activity.
POSSIBLE EXCLUSION
OF ALL
PARKS AND
GARDENS FROM
THE ARRANGEMENTS
26. We do not support the provisional proposal
to treat all parks and gardens as "excepted land" for
the purposes of these arrangements. This proposal is set out not
in the draft Bill itself, but in paragraph 6 of the associated
paper published by Defra setting out the likely approach to be
taken by an Order under new section 3A of the CROW Act (introduced
by clause 278(5)).
27. Natural England fully recognises the
crucial importance of protecting the existing privacy of land
that is close to and used with houses on the coast, whether it
takes the form of garden, parkland or other land. We note that
many houses on the coast already have rights of way or public
roads running beside them, but we would envisage a strong presumption
against imposing any new public rights through the "private
space" immediately around a house. This approach would be
consistent with the proposed statutory aim of striking a fair
balance between the public's interest in having access to coastal
land, and the interests of owners and occupiers.
28. We believe there are several difficulties
inherent in the provisional proposal to exempt parks and gardens
completely from the application of the new rights:
— Some are extremely extensive, and
their exemption would leave the public still facing lengthy inland
diversions of the type that limit access to many sections of coast
today. Often these are diversions onto busy, unsafe public roads.
— There is no precision as to what
constitutes a garden, and still less as to what constitutes a
park. The terms are used variably by different individuals and
different communities of interest. For example the term "park"
is used by many land agents to indicate the whole of the land
held in hand around a country house, whatever its land cover and
usage: it may not simply connote pasture land with specimen trees.
Equally, it is likely to encompass all historic parkland irrespective
of whether there is any residual occupation of the house in question,
or indeed whether it still exists.
— So we would expect any formal exemption
of such areas to provide substantial scope for dispute as to whether
particular areas of land are capable of having rights aligned
through them at all under the new legislation. In effect, Natural
England's capacity to make sense of the alignment of the coastal
trail in all the circumstances on a particular section of coast
would be significantly impaired.
— This could mean that the public benefits
of the project would be substantially reduced, and that some of
the most long-standing and well-documented obstructions to access
along the coast itself would remain unresolved.
— Perversely, we also foresee instances
where the inability to route the trail across the very end of
a substantial garden would necessitate it passing much closer
to the associated house (for example on neighbouring farmland
where the trail might run around the sides and back of the house
on the other side of a fence).
29. We do not propose that parks or gardens
should become open access land. We believe there is a good case
to be made for a power to align a "way through" such
areas in cases where Natural England considers this is necessary
and meets the other criteria set out in the draft Bill. Paragraph
10 of Defra's section 3A Order paper proposes exactly this approach
in relation to arable land and golf courses. We think it is equally
appropriate to parks and gardens, taken with the other protections
for private interests set out in the draft Bill and Outline Scheme.
30. Adopting such an approach would necessitate
more detailed criteria being included in the final version of
the Scheme to ensure proper protection for the privacy of the
land close to and used with a house.
OUTLINE VIEWS
ON THE
ASPECTS HIGHLIGHTED
BY THE
COMMITTEE
The Government's vision for coastal access, and
the extent to which the Draft Bill provides for it
31. Natural England fully supports the Government's
vision for coastal access and believes that the coastal access
provisions of the draft Bill would enable it to be implemented
in a timely and effective fashion, subject to the comments made
above about parks and gardens.
Whether new legislation is the best or most cost-effective
means of providing increased access to the coast
32. As we indicated in our detailed recommendations
to Government of February 2007, we believe that new legislation
is the only way to combine the different strengths of existing
legal mechanisms, and to meet the highly variable circumstances
along the coast in a suitably customised way.
The case for exceptions to, and deviations from,
a route giving continuous access to the coast itself
33. Subject to our comments on parks and
gardens, we think the draft Bill and associated proposals get
this balance right.
34. Estuaries present particular challenges.
We think it is right that the draft Bill (at clause 276) deals
with them by giving Natural England discretion, but not a duty,
to align a route around them up to the first bridge, tunnel or
suitable ferry. In this way a route back to the open coast can
normally be provided, but where doing so would be out of all proportion
to the benefits, we could propose an interruption in the continuity
of the national trail.
35. We welcome the fact that the draft Bill
permits necessary deviations from the immediate coastal periphery,
for example to enable the route to skirt round ports and industrial
areas, or to safeguard other public interests such as nature conservation
or defence needs. Parts B and C of our Outline Scheme explain
the criteria we would use to determine where deviations are necessary,
and the types of circumstance in which we might propose them to
the Secretary of State.
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
36. We have set out our views on these issues
earlier in this evidence.
The proposals for coastal access in estuaries
37. We recognise that there is often substantial
public interest in walking alongside rivers, whether or not they
are estuaries. The draft Bill is addressing coastal access rather
than river access, and we consider it strikes the right balance
by treating estuaries as an obstruction to be circumvented, rather
than as a recreational destination in their own right throughout
their length.
What classes of land should be excepted from access
rights
38. We support Defra's proposals for the
treatment of excepted land in the section 3A Order paper, subject
to our comments above on parks and gardens.
The proposed arrangements for limiting liability
39. We have set out our views on this issue
earlier in our evidence.
Whether there should be access rights for other
users such as cyclists or horse riders
40. In our view it would be impracticable
and unreasonable for horse riding and cycling rights to apply
along the length of the coast. We will be seeking local opportunities
to improve such rights, with the agreement of the occupier, as
part of the coastal access project. We intend to publish separate,
non-statutory criteria to guide this work. We also intend to consider
with Defra how existing higher rights around the coast can best
be protected in the face of erosion.
Natural England
May 2008
1 http://www.naturalengland.org.uk/leisure/access/coastal/docs/coastalaccess-outlinescheme.pdf Back
2
http://www.naturalengland.org.uk/leisure/access/coastal/docs/Advice%20to%20Government%20Report_tcm2-31282.pdf Back
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