Examination of Witness (Questions 20-39)
MR PAUL
JOHNSON
4 JUNE 2008
Q20 Mr Cox: I fully accept that,
but you are removing, under the proposed legislation, the 20-metre
rule from a dwelling or even a livestock building. Correct?
Mr Johnson: In a formal sense,
yes.
Q21 Mr Cox: So there may be cases
where you would want to drive the pathway, not in this rather
lovely combe which may be 100 metres or so, but you may want to
come even closer to a building, and what you are proposing is
that you should be able to do that without paying a penny piece
in compensation?
Mr Johnson: I think it is important,
first of all, to realise that on the coast at the moment there
are many, many public roads and public rights of way that pass
right beside houses.
Q22 Mr Cox: But those are historic.
The land owners have purchased them.
Mr Johnson: Our view is that,
in terms of the private space that is used around a house, clearly
there is no way that we should be able to align the new route
in such a way that that would happen, that it is right next to
the house, or, indeed, I would say, within 20 metres of it, but
the difficulty with having a 20-metre exception, of course, is
that, in effect, you would knock out all those existing routes.
So that would be a nonsense.
Q23 Mr Cox: But it is already subject
to what is existing?
Mr Johnson: But there is no way
that Natural England would align this through someone's garden
within 20 metres of the house. It is just not going to happen.
Q24 Paddy Tipping: Tell me where
the discussions with Defra are on this particular point? You said
it was a friendly discussion. From the discussion within the committee,
as you can see, there are different views on this.
Mr Johnson: You must ask the Minister
that question, but my characterisation of it would be that there
is at the moment a provisional proposal in the section 3A order
paper—the Bill is silent on this—that the current
exception for parks and gardens should be continued. That is the
provisional assumption, which we are suggesting may not be right,
and the reason we are suggesting it may not be right is it takes
away the very flexibility that the legislation is intended to
create for Natural England.
Q25 Mr Gray: I will not detain the
committee long on the principle of the thing, but there are a
couple of detailed points that I do not quite understand. The
reason why you are having difficulty with the CROW Act regarding
the 20 metres away, houses or buildings containing livestock,
which is actually quite an important point, is not because you
actually want the path necessarily to go within 20 metres, but
because at the moment there are paths that do so, and if this
exemption was there, then they would no longer be able to be used.
Is that your general argument?
Mr Johnson: That is the argument,
yes.
Q26 Mr Gray: I do not understand
why that argument applies, because if the right of way is already
there, then why do you have to have a new Act of Parliament, this
Act, in order to establish that route? If the right of way goes
within 20 metres of a building, then you can continue to use that
path.
Mr Johnson: There may be a range
of circumstances. It may not be a public right of way. It might
be a piece of access land, for example.
Q27 Mr Gray: That would not change.
If at the moment people are able to walk within 20 metres of a
house or a building with livestock—because if it is livestock
it is actually quite worrying—that would not change, would
it? Therefore, why is it necessary to remove the exemption which
exists under the CROW Act?
Mr Johnson: The proposal for the
removal of the 20-metre exception is essentially Defra's proposal,
and it is probably best if you ask the Minister that question,
but it seems to us that there will be situations where people,
in effect, have access at the moment within that zone and where
the natural thing to do is to perpetuate that access as part of
this trail, and if the exception were to knock it out, then you
would not get any—
Q28 Mr Gray: It would not knock it
out, because they would knock it out from this particular bill.
It would still be available under existing legislation. All right,
we will ask the Minister about that. The other logical point I
wanted to pick you up on is this question with regard to parks
and gardens. Parks and gardens are exempted in the CROW Act, but
they are not going to be exempted here, and the reason you gave
why it was reasonable that that should be different is because
there are far fewer parks and gardens on upland, mountain land,
moorland and common land than there are on the coast land. If
that were the case, even if it is only one house on moorland,
the principle has been accepted that it is wrong for people to
be required to walk past that on moorland, and the mere fact that
there are more of them on the coast path would seem to redouble
that importance; and that means in this case that there are 4,300
small gardens—private houses, private people, little gardens—on
the coast. You are saying the grand manor on the upland with a
huge 20-acre garden is exempt—we cannot put the track past
the manor house on the upland under the CROW Act, that is exempt
land—but 4,300 ordinary people with small houses with a
tiny bit of land on the coast, you are different. We will put
the path past your house. Why is that different?
Q29 Mr Drew: I know the committee
want to answer each other but we are asking you the question and
you are the one providing the answers.
Mr Johnson: Clearly, we are not
in the business of putting a trail across people's back lawns.
That is simply not going to happen. This is a simple attempt to
characterise for you the scale of the issue in terms of broad
categories of small, medium and large around the country.
Q30 Mr Gray: Why leave the exemption
in there then?
Mr Johnson: My second point, was
the key thing that differentiates this project from the CROW project
is the emphasis on the ability to walk round the coast. CROW created
open access to land falling within certain land types. This does
something very different. It gives Natural England a flexible
power, where it makes best sense, in terms of the relief and destination,
convenience and proximity to the coast and taking account of private
interests—all those factors bearing on each other—to
align the appropriate route and then for people to comment on
that, and, if it is wrong, it can be changed. Clearly, if that
is the approach, as it is on the coast, then the potential scale
of difficulty with a blanket exemption of parks and garden is
much greater than it is on CROW land where, frankly, it does not
matter.
Mr Gray: Exactly. It is much more important
on the coastal path because there are 4,300 small gardens. Can
you answer my question? Why it is that at the moment under the
CROW Act a grand garden, or a 20-acre garden in upland is exempt—you
cannot walk across that—but you are saying that for 4,300
people, in some circumstances, the Government might allow people
to walk across these small gardens round the coast. If you are
saying that is not going to happen, why not just do what Defra
want to do and leave the exemption in there?
Q31 Mr Drew: I think we are getting
into a bit of a stalemate here. Anne has got a point, but she
wanted to come in anyway. Perhaps you can round that off, and
I will give Geoffrey one last go?
Mr Johnson: If it is possible,
before we move on from the subject, I would like to deal with
the last couple of pages.
Q32 Mr Drew: Do you want to finish
off on that?
Mr Johnson: Yes, I think it might
be helpful if we do that. Page six: this is not actually a coastal
place, this is in Shropshire, but I think it illustrates quite
well the point that Mr Tipping made about the nature of parks.[10]
Here you have an estate which, you can see from the key on the
map, includes all manner of things: it includes a deer park; it
includes old quarries. You can see from the aerial photography,
it includes a lot of cultivated land. Then, in the photograph
on the right, which is taken from the management plan for the
estate (and, by the way, the name of the estate ends in "park"),
the management plan describes that belt of conifers that you can
see there as being a kind of unacceptable separation between the
two parts of the park. You see in front of you, in the foreground,
a large area of ploughed land, which clearly is regarded as being
part of the park. That distant blob at the back of the picture
is the house, but if this were on the coast, there is no way that
we could run the trail on the edge of that arable field. I should
emphasise that that is the only power we are seeking here. Clearly
we do not want to turn parks and gardens into open access land—that
would be ridiculous—but what we are saying is there may
be circumstances where we should be able to run the trail through.
Turning to the final page, number seven, we now go up to Cumbria,
and this is another estuarine situation.[11]
Just to say that the existing coastal path here diverts several
kilometres inland rather than going round the estuary. You can
see from the aerial photography the difficulty of knowing where
the parkland around the house ends and where, as it were, the
tenanted farm land, if there is any, begins, and so on. It might
be that in this case there would be a difficulty caused by the
exception, or it might not, but I think it illustrates the range
of different scenarios and possible definitional problems and
possible challenges that might arise if there were a global exception.
Mr Drew: Anne has a different aspect.
Q33 Miss McIntosh: No, it is on that
point of estuaries. Could you explain the philosophy behind why
estuaries are exempted?
Mr Johnson: Did you say estuaries?
Q34 Miss McIntosh: Estuaries.
Mr Johnson: Let me explain what
the underlying policy for the draft Bill is. As you can imagine,
there was quite a bit of head-scratching and discussion about
what was to be done on estuaries because clearly they present
a substantial obstacle to the ability to walk round the coast,
but, at same time, some of them go a very long way inland. The
conclusion that we came to in the end, in working very closely
with Defra, as we have throughout this project, in preparation
for the draft Bill, was that it was important to go back to the
basic objective of the project, which is not about enjoying rivers,
it is about getting people round the coast, and so the way in
which the project and the draft Bill look at estuaries is not
as a recreational destination in their own right, but as an obstacle
to be circumvented as you make your way round the coast. So there
will be some places where it is possible to do that almost as
soon as the estuary begins, and there will be other places where
that requires quite a large inland diversion to get up to the
first bridging point or the first ferry, or whatever it is, but
the philosophy is to get people on, round and back out onto the
open coast as soon as we can. That is the underlying policy. Estuaries
are exempt in a formal sense, but the way the draft Bill works
is to give Natural England discretion to engage with them to the
extent that it is necessary to get people on around the coast.
Q35 Miss McIntosh: But there is a
danger that you are differentiating on the category at random.
James has raised the point about the smaller owners, of which
there are 4,300. There are only 50 with large gardens and estates
and it just seems a little unfair that you are going to exclude
those, some of whom, obviously, are very close to the Secretary
of State himself. It just seems a bit unfair that you are excluding
some land owners and you are including others.
Mr Johnson: I am not sure necessarily
I follow—
Q36 Miss McIntosh: The Blackwater
estuary, for example, is very close to the coast. I know you do
not want to take particular examples, but on what basis, on the
criteria you are using, are you going to have the cut-off between
the nearest crossing-point?
Mr Johnson: I do not think it
is a discriminatory policy, because any property that lay in the
ground between the open coast and the first bridge or tunnel or
ferry you chose to get across, any property that lay within that
section, would be subject to the same criteria and the same protections,
and so on, which will be set out in the legislation itself, the
balance between public and private interests in the legislation
itself, and in more detail in the scheme. The final version of
the scheme will be published that will set out criteria as to
how we approach this situations. Picking up Mr Gray's point, it
is clearly very important that, if we do not end up with an exception
for parks and gardens, that the scheme goes into some considerable
detail about what those criteria are to protect privacy and all
the rest of it. I do not think it is a question of discriminating
between one kind of property and another; I think it is just a
question of implementing, in a fair and consistent way, the policy
on estuaries.
Q37 Mr Drew: Before we go on, is
there a de minimis size for small gardens that you would
welcome the possibility that there was a clear exception for,
or do you want the flexibility of anything defined as a small
garden to be includable?
Mr Johnson: I think there are
different ways that this could be done. It would be possible,
I suppose, to set a distance as a kind of buffer, but I think
the difficulty with any particular distance is that it is not
so much a question of distance as it is of sight lines and screening
and all sorts of other factors that have a bearing on whether
there is a material impact on a house. So, yes, a distance based
approach might be one alternative to the provisional policy, but
it might be a bit black and white, and I think it might be a more
effective way forward for the scheme to set out in some considerable
detail the approach Natural England will take if it did engage
with a park or a garden and to have a consistent implementation
of those principles.
Q38 Mr Gray: One last thing on the
parks and gardens business. Would you not be concerned that if
you were to go ahead with removing the exemption from the CROW
Act, you would land up with a huge outcry from the 4,700 smaller
gardens, apart from anything else, and what has, broadly speaking,
been warmly accepted and welcomed by the nation, as it were, would
turn into something which is extremely controversial and very,
very political, very political. You would have a huge political
battle on your hands. Is that really worth the paper it is written
on?
Mr Johnson: I think there is a
danger, is there not, that people get that message, that we are
coming for your garden. Clearly, we have got to find a way effectively
to communicate to people there is no way are we coming through
people's back lawns. That is not going to happen. The only thing
that we are trying to do here is to preserve the flexibility to
make sense of the circumstances that the legislation is intending
to create, and the watchword should be that if putting the trail
through one of those areas is going to have a material impact
on the privacy of the area round the house and so on, then we
do not do it.
Mr Drew: Can we move on to this idea
of alignment of routes and begin to look at how you might be able
to move through that?
Q39 Miss McIntosh: In your summary
of proposals, in your submission, you talk about an access corridor,
including new areas of spreading room along the coast and formalising
existing beach access. You go on to say that your powers would
include undertaking any necessary establishment work on the ground,
such as installing gates and bridges. Later you talk about the
implementation programme costing around five million pounds per
year over a 10-year creation phase. What I am not clear about
is are you funding that?
Mr Johnson: Yes.
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