Examination of Witness (Questions 1-19)
MR PAUL
JOHNSON
4 JUNE 2008
Q1 Mr Drew: Good afternoon everyone and
welcome to this afternoon's session. I am sitting in the chair
for our esteemed Chairman, who seems to think that it is better
to be in Rome than here, and I am sure our weather is better than
Rome's! As you know, it is probably very interesting to be there
for the food conference. We have as our witness today Mr Paul
Johnson, who is the Principal Specialist, Access and Rights of
Way Legislation, for Natural England, who we have met on many
previous occasions. If anyone knows what is going on, you do,
but I think it will be useful to have a progress report on your
Chief Executive, who was to be with us but has decided to sprain
an ankle rather than to give evidence to this select committee.
Is she all right?
Mr Johnson: Yes, I am afraid she
sustained a rather nasty injury at the beginning of the week and
it looks as if she may have to have an operation. She passes her
sincere apologies, but, clearly, it was not practical to be here.
Q2 Mr Drew: If you would pass on
our best wishes and say we have had many excuses not to appear
before a select committee, but not usually one that we try and
sprain an ankle in advance of the proceedings. Subsequent to it
we understand! Could I start the questioning? Clearly, this is
a complicated area. Presumably you have been spending a lot of
time trying to get to grips with it, and you have been advising
the Government as well as to how Natural England are going to
face up to how we implement this. Of course, Natural England were
key to making the recommendation there should be a legislative
change in this area on the back of the CROW Act rather than trying
to muddle along and, indeed, use the CROW Act. If I could start
to look at this notion of why we need legislation and why we need
legislation now so soon after we have had legislation that has
opened up the countryside, so-called, anyway. Can you put on the
record what advice you gave and why you gave that advice?
Mr Johnson: Yes, of course. First
things first: clearly the coast is enormously popular. It is self-evident
to say that, but it is, and the figures bear that out. There are
70 million leisure visits a year to the coastline, even outside
seaside towns, so it is tremendously popular. Coastal walking
is even more popular than using the beaches, lying around the
beaches, which surprised me and surprises a lot of people. Where
that access is clear and secure and people can use it with confidence,
a trail around the coast is a lifeline for local services—shops
and pubs, and so on are sustained by it. The south-west is an
excellent example of that syndrome, and our best estimate is that
something like £300 million goes into the regional economy
every year on the back of that public enjoyment, so it is big
business. The legislative approach: essentially, Natural England
concluded, after a great deal of scrutiny and analysis, that new
legislation was the only sensible way forward. Just to explain
the thinking behind that, clearly there were some mechanisms that
could have been used to fulfil the Government's objectives that
were already on the statute book—rights of way creation,
use of the CROW powers in section three of the CROW Act, which
already exists, or the use of voluntary mechanisms such as agri-environment
agreements.
Q3 Mr Drew: Has there been any attempt
to use that legislation to open up access to the coastline already
and, if so, has it failed, which is what actually made the Government
very keen to include this within the Marine Bill or the draft
Marine Bill, as it now is?
Mr Johnson: There has been some
use of right of way creation powers, and there has been some use
of access agreements as part of agri-environment arrangements
such as Countryside Stewardship or Environmental Stewardship.
In both those cases I think it is fair to say that there has been
some progress, but that it has been found wanting, in effect.
The south-west is quite a good example of where you have got this
tremendous resource of a path right round the south-west peninsular,
but it has a taken very long time to get as far as they have,
and I think the team concerned still feel that they have got some
way to go in making it fit for purpose, great as it is. So those
existing powers offer measurable benefits, but our analysis was
that none of them taken alone could deliver what the Government
was seeking to achieve, and our advice to government in February
2007 was that it needed to legislate to combine, in effect, the
strong points of those different approaches into an approach that
would, in effect, create customised powers to deal in a flexible
way with the situation on the coast, which, of course, is infinitely
variable—a huge range of different types of coastal land
and land use and land cover—and we became very clear, on
the basis of the fact-finding and analysis that we did, that new
legislation was the only way to give proper effect to what the
Government said it wanted to achieve in terms of improving the
coastal access and, indeed, the coastal environment.
Q4 Mr Drew: Before I bring in David
Lepper, do you want to refer us to these wonderful maps that you
have given us so at least we know what are the facts are that
you have put in front of us today?[3]
Mr Johnson: Yes. These figures,
Mr Drew and Committee, concern the issue of parks and gardens.
I am happy to talk to them now or, if you wish—
Mr Drew: Let me bring David Lepper in
and perhaps, after David Lepper, you will say to us what they
are.
Q5 David Lepper: Just a question
about the use of agri-environment schemes. You mentioned Countryside
Stewardship and others. You said that they were somewhat lacking.
I think that was the phrase you used. Was that in terms of the
number of those schemes, or the quality of the schemes that were
established, or a mixture of both? I ask because I recall that
prior to the CROW Act much was made about access schemes, voluntary
schemes that were in operation then, and there was a lot of criticism
about the actual quality of some of those schemes. Was it number,
or poor quality schemes, or both?
Mr Johnson: I think it depends
which ones you look at. There are some really good ones; there
are some that were not so good. I think that the work that was
done under the original Countryside Stewardship scheme from about
1990 was very groundbreaking in terms of showing that access and
conservation objectives can co-exist and that farmers are willing
to address them simultaneously, and so on, and, of course, one
of the original priority areas for those was the coast. So it
is patchy, but I think the unifying thing is that, of course,
they are only for 10 years or, in some cases, five years, so you
do not get any securing of the access rights of the type that
the Government were seeking to achieve.
Q6 Mr Drew: The suggestion is that
we will have a look at the maps and the photographs when we come
to Paddy's question a bit later on; so we will hold fire on that.
One last question on your view on legislation. We will look at
costs later on, but clearly, when you are looking at legislation
this does add to the complexity of the picture at our coastline,
and one has to take account of the fact that there is, with legislation,
the possibility of legal challenges. You can have that anyway,
but legislation does add an additional spice to those who feel
very hard-done-by in terms of their precious bit of coastline
being taken away by people who they would not necessarily want
to be wandering past their piece of special landscape. Was there
any thought given that this could become a bit of a lawyers' fest
and this would be even more difficult than some of the most difficult
aspects of the rights of way in the open countryside within Britain?
Mr Johnson: You do not legislate
lightly. The conclusion that was reached in this situation was
that it was the best way to achieve what the Government was seeking
to achieve. If you take as an example the existing powers to create
rights of way by agreement or by order, one of the difficulties
with that approach is that it is kind of once and for all almost.
Once you have created a right of way, yes, you can theoretically
move it or stop it up, but it is quite a complicated business.
One of the things that struck us very forcibly when we looked
at the facts around the whole coast of England was just how fast
everything is changing. It is incredible on some sections of coast
how quickly things are changing, and you cannot really try and
fix that in the way that conventional rights of way do, which
is one of the reasons why we have emphasised in our recommendations
to government, and why the draft Bill gives effect to, the ability
for powers and the trail to roll back with whatever erosion occurs
so that that happens, hopefully, automatically in a lot of cases
without having to go through a kind of bureaucratic process to
give an effect to that.
Mr Drew: Can we now go on to how this
is going to work and coastal access. Gavin.
Q7 Dr Strang: You have been given
12 months to complete the scheme in the Bill. Given that it is
a pretty ambitious scheme you are going to be drawing up, the
question is: is that going to be long enough to enable you to
do this job?
Mr Johnson: Just to be clear what
the 12 months is to do, it is to produce the final version for
approval by the Secretary of State of the methodology, which the
draft Bill refers to as "the scheme". So implementation
at that point will not have begun. Once the scheme is approved
by the Secretary of State, as it is required to be, and once the
various regulations and orders, and so on, are made, then Natural
England will be able to begin the implementation process, and
our best guess at the moment is that that will begin in about
April 2010.
Q8 Dr Strang: It will involve quite
a lot of consultation when you are producing that initial scheme?
Mr Johnson: Yes. I should emphasise,
we have done an awful lot of consultation already on the underlying
principles—all the practical considerations, and so on—so
the outline scheme that you have already received from us is very
much a pretty full first stab at what the approach is going to
be. What we envisage doing then is that, at the point where the
Bill is introduced into Parliament, we will publish the first
full draft of the scheme itself, which one would expect to be
a fuller version of the outline scheme, but it will not be five
times as big or anything, it will be very recognisable from the
current document. The reason for publishing that first full draft
at that stage is not, of course, that it is directly subject to
parliamentary scrutiny, but it feels really important to inform
the parliamentary debates about the Bill itself. Once the Bill
becomes law, we will then go through a further set of discussions
about finalising the scheme and then submitting it for approval
by the Secretary of State. So it is intended to be quite a lengthy,
very transparent process to ensure that the methodology we end
up with is fit for purpose.
Q9 Dr Strang: I observe that the
final scheme will not be subject to parliamentary approval. It
will be Secretary of State approval. Are you happy with that?
Mr Johnson: Yes, we think that
is the right model, for several reasons really. Firstly, the way
in which Natural England goes about the alignment process will
be very much within the statutory framework obviously set by the
Bill. Secondly, the rights of access will be given effect to,
not by the scheme itself, but by the order that is made under
the new section 3A that is proposed by the draft Bill, and, of
course, that order will be subject to affirmative resolution.
Thirdly (and we think this is quite important), we need to be
able to learn from experience, and we hope this will not happen,
but if we realise within the first six months or a year or something
that there is one particular aspect that is not actually quite
right and the criteria need to be slightly different, it will
be relatively straightforward for us to go back to the Secretary
of State and propose to change that aspect having consulted about
it, and there is a direct parallel with that kind of flexibility.
If you look at the relevant authority guidance that is enacted
under the CROW Act to govern the local restrictions work, that
is exactly the same situation; that modifications to that guidance
(and there have been some) go to the Secretary of State for approval.
Q10 Dr Strang: A final parliamentary
approval would not be excessively burdensome, would it? Presumably
it would be an option that could have been put in the Bill?
Mr Johnson: In the end that is
a matter for Government, but the view they have taken, and for
what it is worth we agree with them, is that it would not really
be appropriate and it would help to slow down the responsiveness
to problems that we think is necessary.
Q11 Dr Strang: What sort of final
changes? What are the last changes you would expect to be making
to the scheme?
Mr Johnson: The new scheme? Clearly,
one cannot predict what changes might come up to be necessary
against the sort of version that is approved by the Secretary
of State. Clearly, the scheme itself is evolving as we speak,
and as we go through the parliamentary process it will continue
to evolve and it will continue to evolve after the Bill becomes
law. Once it is approved by the Secretary of State, we hope and
believe it will be about right, but our experience with the relevant
authority guidance is that things do come up and things can be
improved and clarified, and so on, and one would expect over time
that that would prove necessary and, in our view, the same model
as is currently applied to the relevant authority guidance is
appropriate for this, which is approval by the Secretary of State.
Mr Drew: Can we go on to exceptions then.
Paddy Tipping: Do you want to talk to
us about exempted land? There is exempted land under the CROW
Act, there is a schedule of exempted land under these proposals,
but there is a difference between you and Defra about parks and
gardens. Defra want to exempt parks and gardens, Natural England
are pretty clear that you would not wish to do that, and you have
given us a set of maps.
Mr Drew: Can we now refer to our wonderful
props that you have given us. We are intrigued whether we are
going to be tested on this!
Q12 Paddy Tipping: Those people who
are sitting in the gallery will not have these, but perhaps you
would just explain what these show and how they support your argument?
Mr Johnson: What I would like
to do is talk you through those in a moment, because I think they
just serve to illustrate some of the issues. You say what is the
issue about exempted land? I would not describe it as a disagreement
between us and Defra, it is essentially a kind of friendly debate
at the moment.
Q13 Paddy Tipping: It is a clear
difference.
Mr Johnson: There is a difference
of opinion in the proposed arrangements for the order, the section
3A order, rather than the draft Bill itself. The provisional thinking
at the moment is that parks and gardens would be out of scope.
To set the context for that, excepted land is, of course, land
that under no circumstances is affected by the rights. So in the
CROW context, even if land is included on the maps of open country
and registered common land, if it happens to be, for example,
a park or garden, then it is not affected by the rights anyway.
But, of course, given that the sorts of land that we were talking
about there were mountain, moor, heath, down and common, of course
it is far less likely that you would encounter significant areas
of park or garden, for example, on that land. Whereas, as you
realise, that is not the situation on the coast. If we could turn
perhaps to the figures that have been circulated. Looking first
at the map[4].
I need to emphasise to you that this is a piece of, effectively,
quick and dirty work that we have done really to inform this discussion.
There is no science to it, it will not be completely right, but
it does give a kind of order of magnitude. What our people have
done is to go round the English coast using mainly aerial photography
to determine where there are sites that appear to them as if they
are likely to be parks or gardens, or both, because there is often
an overlap between the two. What this shows is several things.
First of all, the registered parks and gardens are a tiny minority
of the total that people found. The vast majority of them, as
you probably would expect, are kind of small gardens, of which
they found over 4,000 that they considered might be in that category:
medium gardens over 500; what they called large, whatever one
would describe that as, large gardens or estates, about 50 around
the coast. These are all occurring within a kind of 200 metre
buffer around the coast above median high water. Again, there
is no science about that distance, it is just a kind of zone which
we have used for some of the other projections that we have done
in the past. This is as good a zone to use as any. It excludes
the urban areas. So this is, as it were, the rural coast, outside
settlements. These figures will be a bit of an overestimate, we
suspect, particularly because they will tend to go too far up
some estuaries to be relevant to the policy on estuaries, but
they give you a sense of the scale which the issue might have
around the coast. If we could turn then to the numbered photographs
and maps, and I have put numbers on them to help you keep them
in order because I want to run through them in sequence. Number
one, which is a section of the Solent—.[5]
I should say, by the way, I do not want to identify specific parks
or gardens in this, because clearly we are not pre-empting the
alignment process here, we are merely illustrating the issue.
Page one shows a section of Solent Way in Hampshire. The green
line that you can see there shows how far the Solent Way runs
inland at the moment. It is not difficult, when you look at the
aerial photograph, to see what may be some of factors concerned
there. If you look to the centre and to the left of the picture
alongside the estuary, there are what appear to be a series of
enclosed spaces around houses, and so on, but then, further along
the coast, on the right-hand side of the picture, you will see
what appears to be a large area of parkland, and our best guess
would be that, in a situation like that, that would account for
the whole alignment, the fact that from the outset one is looking
way inland rather than going on the coast itself. It might well
be, of course, that on a section of coast like this that ends
up being the perfect alignment, who knows, but the effect of treating
parks and gardens as exempted land is effectively that it ties
one hand behind Natural England's back, because whatever the commonsense
approach might be, it will not be able to engage with anything
that falls within one of those descriptions.
Q14 Paddy Tipping: Part of the issue
is how do you define parkland?
Mr Johnson: Yes.
Q15 Paddy Tipping: Because a lot
of former parkland is now turned over to agriculture, is it not?
Mr Johnson: I think that is right.
We make the point in the written evidence that if you talk to
the average land agent about what he or she considers a park is,
it is essentially the estate land that is held in hand, and that
will include arable land, grazing land, and so on, and one of
the later pictures illustrates that. Turning to page two, if we
could turn it sideways, this is a bit further round the Hampshire
coast, another estuary, a very large area of what looks, on the
face of it, to be parkland from the aerial photograph, part of
which is actually in formal gardens and, effectively, in order
to provide a secure legal right along that section of coast, one
would have to go right behind that area, assuming that the assumption
about the type of land it is is correct.[6]
Turning to page three, a section of the east Devon coast where
the south-west coast path, as you can see in green, makes a significant
inland diversion for a long length of that coast.[7]
Relatively small obstructions on this length of coast have produced
that alignment, because, of course, it only takes two, or three,
or four such cases to mean that it does not make sense to go along
the coast and then back and along the coast and then back, so
you end with this inland alignment, and a substantial portion
of that is on country roads that are used by traffic and are quite
unsafe. It is clearly not a satisfactory situation to have that
position, but it is difficult to do otherwise, if you start from
a presumption that you cannot go through anything that is called
a park or garden. If we drill down from that to a section of that
east Devon coast, again I do not want to identify particularly
the names or properties here, but on the next map, page four,
you will see on the map and on the aerial photography that there
are essentially two houses occupying separate combes that run
down to the sea.[8]
You can see on the map how the south-west coast path follows a
public road behind these houses, and if we then drill down still
further on to page five, here are some photographs of one of those
two situations—the first one looking up to the house and
the second one looking down from the terrace of the house—and
you can see pretty clearly how what appears to have happened here
is that the former rough land of the combe has been reclaimed
as grazed pasture and planted with odd shrubs and clusters of
daffodils, and so on.[9]
It is very pleasant, but there is no doubt at all that the owners
of that house regard that land as a garden and say so, and you
can quite understand that position, but you can equally see how
the distances involved are very substantial and how having to
go behind that, or continue to go behind that, pretty much predetermines
the alignment on that section of coast.
Q16 Mr Cox: The current coastal path
pays attention to the rights of the owners in their land, and
what you are suggesting is that you should be able, without compensation,
to drive a pathway straight through it. Is that right?
Mr Johnson: What we are suggesting
is that the difficulty with a complete and absolute exemption
of parks and gardens is that it would make it impossible for Natural
England in any situation to go through an area of land that could
be claimed to be a park or garden.
Mr Cox: That is what the current coastal
path does, it honours the private rights of these owners, but
what you are suggesting is that, without compensation, you should
be able simply to determine that those owners should have across
their land, effectively, a public right of way. Is that right?
Paddy Tipping: Mr Johnson will speak
for himself.
Mr Cox: Is that not right?
Q17 Paddy Tipping: Let me just add
to that and then you can answer. If I understand Natural England's
position, you are saying that if you exempt the land, you cannot
then negotiate, on a local basis, the best solution. That is what
you would prefer to do.
Mr Johnson: It is simply not an
option. By definition, if land is legally exempt, we cannot engage
with it, full stop. All I am saying to you is that there will
be some situations on the coast where the common sense and right,
as it were, thing to do would be to go along coast itself, but
where this exception is given legal effect to, we shall not be
able to do that. That is all I am saying.
Mr Drew: Can you answer Geoffrey's first
point?
Q18 Mr Cox: Let me interpret it a
little bit better, because I do not want it to be seen to be simply
a philosophical objection to the whole thing. If you are going
to go across a park or a garden, because they have been recognised
by Defra at the moment under the current arrangements as special,
do you not think that at least the landowners in those cases should
be paid compensation? Is that not a possible answer?
Mr Johnson: We do not think that,
and there is a simple reason why we think it, which is that we
would not align the trail across such land in a way that would
materially interfere with the privacy of the house.
Q19 Mr Cox: There are many cases
where you would have to.
Mr Johnson: We have said in the
written evidence to the committee that, whether you regard land
as a park or a garden or some of other type of land, it is very
important to protect the private space around the house that is
used and enjoyed with the house. That is absolutely clear. But
there are situations where the ambit of that private space, as
it were, extends for a very long way and where the practical effect
of it at the moment is to present an impassable blockage along
the coast.
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