Examination of Witness (Questions 40-59)
MR PAUL
JOHNSON
4 JUNE 2008
Q40 Miss McIntosh: Or are the land
owners expected to fund it?
Mr Johnson: No, Natural England
is funding that and has committed to spend about five million
a year for the 10-year implementation programme.
Q41 Miss McIntosh: Which budget is
this coming from?
Mr Johnson: That comes out of
Natural England's core budget.
Q42 Miss McIntosh: How is the negotiation
process with the land owners going to work?
Mr Johnson: There is a kind of
statutory answer to that and there is a practical answer. There
are various provisions in here for consultation requirements,
and so on, as you would expect. The practical answer is that pretty
much the first thing we will do when we are working on a section
of coast is to go and talk to the occupiers, because it is the
obvious thing to do. So wherever people are willing to come out
and walk the course with us, that is exactly what we, or the access
authority, or both, would do, and that will be a means of testing
out our initial ideas about where the trail might go and what
land might be spreading room inland, and so on, hearing sensitivities
and worries that people have got and, insofar as we can, acting
on those so that we remove or at least minimise any difficulties
that are caused by these arrangements. That kind of informal initial
step, which you will not find in the Bill, seems to us to be integral
to the design of this process, which is to have a friendly conversation,
not at the end of the cycle, which is what happens with CROW—eventually,
after all the mapping you talk to people when you get a restrictions
application, so it is a slightly negative concept—here the
conversation takes place right at the outset, and that seems to
us to be a really good starting point.
Q43 Miss McIntosh: I remember with
CROW there were problems with the mapping, so how are the boundaries
going to be decided, where the actual boundaries will lie, and
who will do the mapping?
Mr Johnson: One of the fundamental
design principles for this project is that the whole thing should
not turn on an absolute necessity for maps of all the land affected,
because clearly there were some issues with CROW, and although
in a way you can say that was a spectacularly effective piece
of project management and delivery, and it was very impressive
work that was done, nevertheless a lot of the costs were the costs
of mapping and related processes rather than putting money into
what happens on the ground. So we were very keen, if possible,
to use maps only where it adds value. Taking the proposals as
they now stand, there is a requirement, in effect, by virtue of
the way in which the 1949 Act is amended, for Natural England
to map the line of the trail—that is a single line, if you
like, that shows the alignment around the coast—so there
is clarity about that. What we intend to do, so far as it works
and achieves clarity, is to describe in the report we do for that
section of the coast the consequence of that in terms of seaward
spreading. As you know the normal principle is that land seaward
of the trail is included in the margin, unless it is excepted.
So, we would attempt, normally, to describe, rather than to map,
those areas—"the cliff and beach seaward of the trail",
or whatever form of words one uses for a particular section, and
then, in relation to any spreading room inland of the trail, we
would either use words, or, if we did not think that was going
to produce a clear outcome for the occupier, or whatever, we could
map that boundary and show exactly on a map where the boundary
of the margin was to be. All of that is about, as it were, the
administration of the process. There is a slightly separate issue,
which is, if I turn up in 12 years' time and want to use the coast
and I turn right or left, will it be clear to me where I am going,
and we will have failed if the answer to that is not yes. So,
one of the core principles of this project is that high quality
management, good visual signals are pretty fundamental to getting
it right. That does not mean having signs every 10 yards, but
it does mean creating visual clarity about where the trail is
and a reasonably good intuitive sense of where the spreading room
is.
Q44 Miss McIntosh: Will it be your
staff from Natural England doing the negotiations, or will you
have other local authorities conducting the access agreements;
and what budget have you allocated?
Mr Johnson: One of the key uses
of the five million a year is to put project officers into access
authorities—essentially, it is the highway authority with
a different hat on, the authority that engages with CROW—and
we have said that, wherever that authority is willing to do this,
we see them playing the lead role in terms of the local consultations
and proposing the alignment and proposing the inclusion of spreading
room. They will not decide. When they have gone through all the
consultations, they will propose something to us and, if we think
it is acceptable, we at Natural England would propose it to the
Secretary of State. If we think it requires work, we will talk
to them about that and decide what is to be done. So it is a Natural
England responsibility, the report to the Secretary of State is
Natural England's report, but it will draw very heavily, in most
cases, on the input of the access authority and we will fund those
project officers obviously. We will also fund any establishment
works that are necessary to facilitate the use once it is agreed.
Q45 David Lepper: I was going to
ask a question about mapping later on, but since it has come up
now, can I put to you a point that the Country Land and Business
Association has raised, and the National Farmers' Union as well,
about the importance of mapping. One of their arguments, as I
understand it, is that in terms of whether the land owner does
or does not have liability for an accident that happens to someone
on coastal access land, a detailed map may be, in some circumstances,
essential to establish that, since, as I understand it, liability
is removed from the land owner on the access land but not on the
land just the other side of that boundary. How does Natural England
deal with that issue?
Mr Johnson: The point about liability
is right. This legislation offers a uniquely low liability that
is not replicated on any other sort of land in England, in effect,
so it is, in that sense, a prize worth having; and the reason
why it is so low is that, not only, as on CROW land, are people
protected from being sued because someone has fallen off a cliff,
but they are also protected from being sued if someone falls off
the edge of an old quarry or trips over a rope and hurts their
knee. So, it is certainly a prize worth having, and we are delighted
at Natural England that the draft Bill includes that reduction
because it is a really sensible thing we need to get across to
the public in using these rights; that the primary responsibility
for safety lies with them not with the occupier. I think it comes
back to what I said. If we can deliver legal clarity with words,
then there should not be a problem. If it appears that there is
not that clarity, we will give them a map.
Q46 David Lepper: I have a slight
worry that it is becoming clear that there is not clarity; this
might be a bit too late in some situations. Let us talk in terms
of an accident to someone using the coastal access strip. After
the accident has happened it is a bit late to say, "Oh well,
it was not clear. We had better do a more detailed map now"?
Mr Johnson: The point at which
to establish whether there is clarity is obviously during the
alignment process, which is why the first thing we are going to
do, as I say, is to talk to the occupier and the second thing
we will do is to play back to them on paper what we are proposing,
and if that is a form of words they do not think is clear, they
will no doubt tell us so, and we can look at whether we can make
it clearer. You are absolutely right to say, and so are they,
that there does need to be some clarity about where the reduced
liability applies, and we will not achieve that clarity if we
do not find a form of words or a map to deliver it.
Q47 Mr Gray: But there must be maps
for walkers. There are maps on the path.
Mr Johnson: There may well be.
That is an access management issue.
Q48 Mr Gray: In the south-west the
National Trust provide detailed maps. On the South West Coastal
Path there are detailed maps all the way round, so you cannot
possibly go wrong. You know precisely where you are at any given
moment.
Mr Johnson: That is an access
management issue and there will be trade-offs in terms of possibly
too much impact on the landscape, and so on, but, yes, in principle
that can be a really useful thing.
Q49 Mr Gray: Hang on. It is not "can
be". Is Natural England going to provide detailed maps for
walkers all the way round or not?
Mr Johnson: We will provide what
I was calling visual signals, and it will be potentially for the
access authority to decide what best signals to use to get that
balance right between information and too much impact on the place.
Q50 Mr Gray: On the south west path
every mile or two miles there is an Ordnance Survey map with the
thing clearly marked. So it is not going to be like that necessarily?
Mr Johnson: I think there is bound
to be quite a lot of use of notice boards of that type where the
visual impact of the board itself is not too intrusive. I think
that makes a lot of sense. You mentioned Ordnance Survey maps.
We do not know, of course, and it is a matter for them at the
other end of this process, what information, if any, they include
on their maps about this, but on the face of it, you would expect
Explorer maps to contain some kind of information about where
the trail is, or whatever, and, again, for those who enjoy carrying
maps, that will be another source of information.
Q51 Sir Peter Soulsby: Natural England
has the statutory purpose of conserving, enhancing and managing
the natural environment. A general question first. Is there not
a danger in this legislation that those three elements of your
core purpose will be unbalanced if what you are tasked with here
is driving access through, and is that not likely unless something
is put in to balance it, to be at the expense of the conserving
and the enhancing part of your mission?
Mr Johnson: The short answer is
no, I think. We are a nature conservation agency. We are clearly
not in the business of trashing wildlife sites, and we will look
very carefully at the potential impact on sensitive habitats and
sensitive species. We will use management and all the other tried
and tested techniques to minimise those. On the European sites
we will honour all the statutory obligations that we have to ensure,
through appropriate assessment and other techniques, that there
is no adverse impact on the feature of interest. So those protections
have got to be intrinsic to the design of the project and they
are and will be. It is just one of the aspects of the thing that
is taken for granted. You also mention enhancement. We have said
in our advice to government, and we continue to emphasise, that
a key part of this vision is not just about providing a place
to walk along the coast, it is about reinforcing the fantastic
diversity in the wildlife and landscape of the coast and doing
what we can to improve that. We have said that, where we can,
we will enter into things like reversion agreements, and so on,
to help to improve the natural environment around where people
are walking so that we reinforce that connection between use,
enjoyment, appreciation and support for conservation. It is a
very important bundle of issues and we are very much determined
to make those connections.
Q52 Sir Peter Soulsby: Can I take
a couple of specifics following from that. One is the need for
seasonal diversions, for example, to avoid nesting birds and things
of that sort. Is that not going to present quite a lot of very
practical problems, how you actually make those diversions and
make them happen and, indeed, make them effective? Another practical
example: what about spreading room when you are going through
dunes and sensitive areas such as that? Are there not some big
issues there about the impact that actually providing access will
have on those other elements, as I have described them, of your
core purpose?
Mr Johnson: Seasonal diversions.
You do not do it lightly, because it produces potential confusion,
but it is, in the end, an access management issue. These things
already happen and there are tried and tested methods of ensuring
that people are clear and all the rest of it. So, clearly we should
not use that approach lightly, but we will be using it where we
need to and we will put in place the management that is necessary
to make it work. Dunes: it is interesting, because when you talk
to different people about dunes they have different views. Some
people take the view that access is absolutely essential to keep
dune systems healthy, but I think to some extent it varies according
to the type of dune system you are talking about. Those are considerations
that we will have to take into account in deciding whether any
particular dune system should be proposed as part of the spreading
room, but the default will be that dunes will be in unless it
is necessary, in effect, to exclude them.
Q53 Sir Peter Soulsby: To come back
to the general, I think it was the RSPB who suggested to us that
the legislation would be improved if the enhance and conserve
elements were more firmly written in to ensure that the balance
was maintained. How do you respond to that? Is there a case for
it being more specifically mentioned within your responsibilities?
Mr Johnson: We did read their
response carefully. If I am not misrepresenting them, I think
the point they were making was not so much there should be a statutory
enhancement programme, which obviously would scare the horses
a bit, but that when we submit our report to the Secretary of
State we should make clear if we are planning some kind of enhancement
programme. I do not know that that needs to be in the Bill, but,
as a matter of good practice, I suspect we would include that
kind of relevant information anyway because it helps to create
the full picture.
Sir Peter Soulsby: Thank you.
Q54 David Lepper: I would like to
turn to an issue that has underlined a lot of this discussion,
I think: the rights of striking a balance between the public good,
as it were, and the rights of the owner or occupier of land. I
think one of the justifications, as I understand it, for not having
a scheme for compensation is that the public good achieved by
the introduction of coastal access outweighs, as it were, the
potential loss to a land owner. It is a very difficult issue to
strike a balance on, is it not? How does Natural England approach
that position?
Mr Johnson: I think it is worth
me coming in on that particular point, because I am not sure that
is quite right. You are right, of course, that there is a provision
in the human rights legislation that allows public benefit, as
it were, to override private interest, but that does not seem
to me to be at the heart of this policy. Essentially, the policy
is saying, "We provide these flexible powers for Natural
England to align in a sensible and a sensitive way around the
coast and, in doing so, to avoid significant impacts on land use
and on property rights, and for that reason compensation is not
appropriate." That is the rationale. It is not saying, "We
are going to use a coach and horses to blast this through and
rely on public benefit."
Q55 Mr Cox: Could you repeat that
last sentence? Could you run that last sentence back?
Mr Johnson: I was saying, if I
understood Mr Lepper correctly, it is not a matter of saying we
will use the sort of power of the law to force this through against
the private interest because it is in the public interest. It
is saying, we, Natural England, should use and be required to
use the powers in a way that minimises the impact on land uses
and property rights, and so on, and that is the rationale for
saying that compensation is not appropriate.
Q56 David Lepper: The NFU are arguing
that there should be something specifically in the legislation
to spell out that lack of interference in the rights of the land
owner, but there is not to be anything like that in the Bill,
is there? You have talked about not interfering with the land
owner's rights to use the building or the land and the access
should not be to the detriment of that, but is there anything
actually in the Bill that spells out those principles?
Mr Johnson: Effectively, what
you have got is a combination of effects. You start with the part
of the coastal access duty in the draft Bill that requires Natural
England to strike this balance between achieving the public benefit
in access round the coast and protecting the private interest
in that land. That is the foundation on which all of this is built.
That balance is tied in with human rights and all the rest of
it. Secondly, the way in which the rights are given effect to
by the section 3A order will to some extent help to strike that
balance: because, for example, if cultivated land is exempted
from the rights, then inherently you have a balance. To take a
silly example, it prevents a cropped field being treated as open
access land. Thirdly, the kind of detailed criteria that already
appear in the outline scheme, and will appear in some more detail
in the final version of the scheme, kind of complete that triangle
really, and by indicating in a way that is sensitive to each land
type and land use, pretty clearly, the approach we are going to
take, you deliver that kind of protection. For example taking
the same example, we say, if it is an arable field, what we will
normally look at doing in discussion with the farmer is to go
along the cliff edge, normally on the margin of land he makes
no use of for cultivation purposes anyway, so the effect is neutral.
That is the kind of commonsense approach that builds on the more
formal protection afforded by the draft Bill and by the order.
Q57 Mr Williams: On that example
you have just given of an arable field that comes up to the cliff,
where is the spreading land then?
Mr Johnson: It is on the cliff
slope or cliff edge, and on the beach, but typically what you
would have in that situation is four metres, or thereabouts, of
cliff top and that would be the extent of it there.
Q58 Mr Williams: But there would
still be rights on the beach below it?
Mr Johnson: Yes.
Q59 Mr Cox: I want to come in on
this point, if I may. In striking a fair balance between the interests
of the public and the interests of the land owner, how can it
be appropriate to exclude the possibility of compensation, because
there may be cases where, in order to put your pathway where you
would want to, it will have an impact upon the privacy. You are
removing the 20-metre rule from CROW, you are saying, "We
will never go within 20 metres", but there are going to be
occasions Take your page five, the owner of that combe can say
to the person whom he puts it up for sale to, "I have exclusive,
sole rights over that land. Nobody can walk across it." One
can imagine that a purchasing person who wants to buy it would
regard that as rather an attractive option; some people want isolation
and some people want privacy. That is going to potentially reduce
the value of his land, and looking at this combe one can see that
might be the case. If you are allowed to walk in front of his
garden through this piece of land here, and there is a trail of
people in the summer, that may well be an effect on the property
value of his land. How can you be able to strike a fair balance
if at least the possibility of compensation does not exist?
Mr Johnson: I think, essentially,
the subject of compensation is matter for government.
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