Memorandum submitted by the Country Land
and Business Association (DMB 04)
SUMMARY OF WRITTEN EVIDENCE FROM THE COUNTRY
LAND AND BUSINESS ASSOCIATION
Whilst the CLA appreciate the importance of
improved access we believe the current coastal access proposals
in the draft Marine Bill and the accompanying Outline Scheme are
significantly flawed and have the potential to have a detrimental
effect on both land ownership and the management of land based
businesses.
Existing Mechanisms: Additional access could
be adequately provided by incentivising voluntarily provision
through existing schemes or by resorting to existing powers in
the Highways Act. The Government has not explained why the present
state of affairs is unsatisfactory or why it considers it necessary
to incur the expense and complication of introducing a new regime.
Consultation/Legislative Process: The twin track
approach of consultation on a draft Bill and preparing the methodology
puts the property and business owner at a severe disadvantage.
Compensation: Where there is real financial
loss that can be proven as a direct result of either the legislation
or the scheme, then there should be a right to compensation for
that loss.
The Trail: There is no indication within the
draft Bill or the Outline Scheme as to how the interests of the
business will, in practice, be balanced against the public interest.
Spreading room: The impact of spreading room
will be greater than the impact of the route itself, because of
the areas of land involved
Estuaries: Estuarine waters are usually of great
environmental value and many are recognised as such by designation
as Natura 2000 sites. The impact on wildlife, agriculture, businesses,
sporting and private property would be substantial. Coastal access
is about access along the coast, not inland.
Exceptions: As in the CROW Act but additional
exceptions to protect developed land and coastal business interests—particularly
with reference to beaches.
Mapping: The precise areas of land subject to
the right of access need to be shown on a map.
Right of Appeal: As the legislation, scheme
and final approval will all be dealt solely by Defra and its own
agency it is imperative that there is an individual right of independent
appeal.
Liability of Landowner: The draft Bill must
address the liability for operational activity on the land.
Dogs: There needs to be a definition of "under
control" and also an assessment of the impact of a lack of
control.
Public Access and Nature Conservation: There
needs to be a clear and transparent protocol and process that
demonstrates how these two issues will be resolved where there
is conflict.
Higher Rights: There is no proven need for higher
rights. The impact on landowners, businesses and the landscape
would be far greater than access on foot
Case Studies: The CLA produced a number of case
studies as part of our consultation response demonstrating the
impact on different coastal business—agriculture, commercial;
and tourism, as well as private property. These are attached at
appendix 1.[1]
1. INTRODUCTION
1.1 The CLA is the leading national organisation
representing and supporting businesses in rural communities, and
covering all aspects of land use and management. Our members own
and run more than 250 different types of businesses in rural areas
including; agriculture, forestry, fisheries, renewable energy,
food, conservation, access, tourism, recreation and other rural
businesses.
1.2 The CLA recognises the desire of the
government to improve access to the coast. The CLA has been heavily
involved in the work leading to the production of the draft Bill.
We are pleased that both DEFRA and Natural England have taken
on board some of our concerns, particularly on the extent of the
path and issue around liability.
1.3 Nevertheless we remain of the view that
new legislation is unnecessary as current legislation and that
increased access to the coast can be delivered using existing
mechanisms:
— Additional access should be provided
voluntarily through Higher Level Stewardship or an alternative
additional scheme. A well funded voluntary scheme could deliver
a targeted variety of good quality access for different uses (access
on foot, horse, and bike) for leisure, educational and general
public benefit.
— Where public access is not currently
being provided there are existing measures under section 25 and
section 26 of the Highways Act 1980 to deliver new routes. The
Highways Act provides access through Public Path Creation Agreements
or Orders. More recently these have allowed for roll back as coastal
erosion occurs.
1.4 Where there are direct financial losses
or additional management costs that result from legislation then
compensation should be paid to offset the proven losses.
1.5 Case studies showing the impact of coastal
access can be found in Appendix 1.[2]
Over the course of the winter we have had several meetings and
site visits with the Minister, Defra and Natural England staff.
1.6 The current coastal access proposals
in the draft Marine Bill and Natural England's Outline Scheme
are significantly flawed and will have the potential to detrimentally
affect both land ownership and the management of land based businesses.
1.7 The main CLA concerns are set out over
the following pages.
2. NEED
2.1 There is already a significant amount
of access along the coast in the form of public footpaths, permissive
routes, and access made available in return for payment. There
is no indication of the additional percentage that this scheme
will create, as it cannot achieve 100% coastal access.
2.2 Where there is no right of access it
is often for good reasons, for example there may be an existing
danger (cliffs, quick-sand), a nature conservation area (N2K/SSSI[3]
etc) or the area may be covered by a port, defence establishment
or other development.
2.3 The Government has not explained why
the present state of affairs is unsatisfactory or why it considers
it necessary, particularly in view of DEFRA's current financial
difficulties, to incur the expense of introducing a new regime.
2.4 The CLA suggests that anyone who objectively
read the survey[4]
undertaken on behalf of Natural England on the need for increased
coastal access provision would find it difficult to see the justification
for spending resources on creating a new right of coastal access,
before addressing the many issues already faced on the coast.
2.5 The Executive Summary and the conclusions
of the survey can be seen at Appendix 2.[5]
These show that far from more access being required, access to
the coast is already well provided for. The problems lie with
getting to the coast—whether due to lack of time, money
or inadequate public transport. It reports that most are happy
with the current access available on the coast although they might
not appreciate the basis of these rights.
IPSOS/MORI SURVEY—SUMMARY
"The majority are happy with the existing
access they have to the Coast"
"Overall, there appears to be good access
to the coast".
IPSOS/MORI SURVEY—CONCLUSIONS
"Access is currently seen as being very
good and people feel they can access most parts of the coastline"
"Indeed, many questioned the need for new
paths and areas, and would prefer to see budgets prioritising
the maintenance of the current paths and facilities."
3. CONSULTATION/LEGISLATIVE
PROCESS
3.1 The proposed legislative framework gives
DEFRA and Natural England significant powers that allow considerable
flexibility over the way in which coastal access will be introduced.
As such it is difficult to ascertain how the regime will operate
in practice.
3.2 The detail of the scheme including how
the route of the trail will be established, its width and the
definition of spreading room, such as it is, are all contained
in Natural England's Outline Scheme. The final scheme will, the
CLA understands, be developed over the course of the Inquiry and
through the passage of the final Bill.
3.3 It is understood that only after the
Bill receives Royal Assent will the final draft of the Scheme
be published for consultation.
3.4 This leaves anyone with a real interest
in coastal business who may wish to submit evidence to this Inquiry
in a very difficult position. They are faced with open ended legislation
that stands to damage coastal property ownership and businesses,
balanced against the very briefest of information on the scheme
which inadequately describes the impact of the final vision for
the scheme.
4. COMPENSATION
FOR PROVEN
LOSS
4.1 The CLA is not claiming that land owners
and occupiers should be entitled to any additional payments purely
because their land is designated access land. However, where there
is a proven loss as a direct result of either the legislation
or the application of Natural England's Scheme then there must
be an ability to directly re-coup those losses as part of the
scheme.
4.2 It would seem likely that in most cases
Natural England intends that the coastal trail will be located
along such a route as to avoid creating a loss, but this will
not be possible in every case. There will inevitably be some situations
in which landowners will suffer a loss. Much of the coast is used
intensively for agriculture (vegetable, cereal and livestock systems)
or for leisure and tourism (holiday cottages, hotels, golf courses,
caravan and camping sites, amusement parks etc).
A small 9 hole golf course on the coast. It is
already on a very tight site which is eroding and previously a
permissive path has been accommodated. Unfortunately the cliff
has now eroded to such an extent that it is difficult to secure
the safety of the walkers either because of the proximity of the
cliff edge or from those playing the course.
4.3 The losses could range from a simple
loss of capital value where perhaps the privacy of a property
(eg cottages, private houses, hotels, or properties let out for
functions) has been eroded by the new right of access. There could
be a loss of income as the use of an area becomes sterilised,
or a less intensive form of management has to be adopted. Finally
there could be additional one-off costs for capital alterations
to a business (eg moving tees and greens on a golf course, or
pitches on a caravan site).
A large coastal house is let out for holidays
and functions being prized of its exclusive location and views
of the rocky coastline. The cliff top forms an important back
drop for these functions. This area, for example, is often used
for wedding receptions in the summer.
The rest of the estate consists of let cottages
which enjoy exclusive use of a rocky private beach and a small
harbour.
Loss of capital value estimated at 10%—over
a total value of £3million
4.4 The situation can not be compared with
businesses that occupy land subject to the right of access under
CROW. The use of land is on the whole more intensive on the coast.
There is a far greater diversity of businesses all of which involve
a variety of management considerations.
A number of beach owners charge just for access
onto the beach—either by the season or by the day and number
of people. The money generated pays for litter picking, cleaning
of the beaches, or repairing sea defences.
Any statutory right of access will remove this
income stream, but add to the costs of management.
5. THE TRAIL
5.1 Whilst the Outline Scheme details the
broad principles of how the trail and spreading room will be established,
there is a lack of detail as to how the interests of landowners
and businesses on the coast will be balanced against the perceived
public interest. How is a balance going to be achieved and how
is the weighting of the perceived public interest accounted for?
Again this could change from location to location.
5.2 There is further concern that should
the trail pass on top of flood defences there will be a much greater
impact as both people and their dogs will appear silhouetted on
the horizon and thus visible from a greater distance. In our experience,
this will mean greater disturbance to livestock and wildlife over
a wide area.
Over 400 acres of foreshore grazed in the winter
by sheep and in the summer by both sheep and cattle. The area
is bounded by privately erected and maintained tidal defences.
Unrestricted public access will have the effect
of scattering the sheep to the far end of the marsh and also disturb
birds on fresh water conservation ponds behind the sea wall.
5.3 The CLA is concerned by the mention
of "views of the sea" as this could imply that the right
of coastal access may come some way inland. This proposal is a
right of coastal access and the CLA hold that there should not
be a desire to take the trail inland, unless there are good land
management reasons for doing so. There might also be sound reasons
for limiting seaward spreading room in this instance.
Coast is bounded by a railway embankment.
The trail could pass on seaward side of embankment
in which case access could only be tidal.
The trail could pass on landward side of embankment
in which case there would be no view of the sea and considerable
interference with the arable cropping of the land and the need
to cross many drainage ditches.
There is a hill inland (approx 1mile) which would
create a vantage point, but this would cause considerable management
problems with sporting and timber production.
6. COASTAL MARGIN/SPREADING
ROOM
6.1 The guidance within the Outline Scheme
is vague over the amount of spreading room that will be designated
and this is unhelpful to the landowner or occupier as it is impossible
to judge the impact. In addition spreading room will be, in part,
dependant on the location of the trail.
6.2 A landowner might successfully negotiate
the setting of the trail further inland to facilitate easier management
of the coastal zone, however "spreading room" will still
be the area between the trail and the coast—so the management
problems will not be alleviated unless he is able to apply for
a closure of the spreading room.
6.3 It is unclear how the extent of the
inland spreading room will be decided. There appears to be no
assessment, nationally, of the amount of land that this spreading
room will provide and the public benefits associated with it.
6.4 The impact of spreading room is likely
to be far greater than the impact of the route itself, just by
virtue of the area that it will occupy. The boundary of the spreading
room could vary from enclosure to enclosure. On agricultural land
this could limit established operations (eg spraying, application
of fertiliser) and therefore use of the land; it could also reduce
the intensity or type of grazing. For other uses of land it will
result in uncertainty, security concerns, financial loss, or lack
of privacy.
6.5 On areas where people are encouraged
to remain rather than walk facilities and services to prevent
litter dropping, dog fowling will be necessary as well as additional
works to ensure personal safety.
6.6 An assessment needs to be undertaken
into the disturbance that might be caused as a result of additional
activities taking place on this land.
7. PUBLIC ACCESS
AND NATURE
CONSERVATION
7.1 There are stretches of coastal SSSI
(many of which are also Natura 2000 sites) where public access
has been discouraged by English Nature and latterly Natural England
because of the importance of these sites for flora or for bird
populations. Neither the draft Bill nor the Outline Scheme addresses
how, in these situations, access and the interests of nature conservation
will be balanced. The observations in relation to Estuarine Access
are also important here. There must be a mechanism to enable the
coastal access strip to avoid all Natura 2000 sites in order to
avoid disturbance at these sites.
Landowner and farmer owns sand dunes and beach
which are designated SSSIs—the sand dunes for their plant
life and the shingle, rock and sand beaches for their birdlife.
An area of the dunes is used to graze livestock
throughout the year with supplementary feeding taking place in
winter—at different times of year young bulls and suckler
cows are kept on the dunes. The area behind the dunes is intensive
improved grass and arable land.
English Nature always sought to restrict public
access to the beaches and the sand dunes because of disturbance
to the birds.
7.2 There should be a presumption against
an increase in access to all Natura 2000 sites, unless a full
assessment has been carried out. That assessment must demonstrate
that the proposals do not impact on the species on the site. Where
the nature conservation interest is over-riding will the route
necessarily pass on adjacent land which could be more intensively
farmed?
8. ESTUARIES
8.1 Giving the right of access along estuaries
is potentially very damaging. This brings the right of coastal
access inland—sometimes 10 or more kilometres—before
a permanent pedestrian crossing is found. Coastal access was not
intended to give a right of access along estuaries—and nor
should it.
8.2 The Government recognises that estuaries
are often both environmentally very valuable and also very vulnerable.
Many are designated Natura 2000 sites and as such the points raised
above concerning disturbance are particularly pertinent.
8.3 Estuaries are very important sites for
birds whether they remain all year, over-wintering/summer, or
whether they are used en-route by longer distance migrating birds.
It is the edges of the estuary environment which have the greatest
diversity of habitat and therefore will be the most susceptible
to impact. These areas will provide both shelter and a food source
for all wildlife and in addition a nesting location for birds—it
is also this area that will be closest to the trail and spreading
room.
8.4 In many cases the disturbance of people
using a route close to the estuary will be very difficult to mitigate,
and just insisting that dogs are kept on leads will be an inadequate
measure
Estate bounds both sides of the estuary. The
first pedestrian crossing point is some 6 km up the estuary which
has no public access at present
The right of coastal access, as proposed would
pass several holiday cottages and also pass through the main woods
used for shooting.
Valuation evidence has shown that the impact
on the holiday cottages will be a reduction of value of between
20% and 30% depending on the location.
The financial impact of the shoot has not been
measured but it could prevent shooting in some of the most important
woods situated at the centre of the estate.
8.5 The impact on shooting is potentially
considerable. Estuaries provide a more sheltered habitat than
the coastline and are quite often wooded and the landscape well
hedged. The estuaries will also be areas of importance for wildfowlers
who will benefit from access to tidal marsh. This makes the estuaries
an extremely important asset to all that shoot. Often it is not
the amount of ground that is lost to shooting that is important,
but the location of that ground. The Outline Scheme puts considerable
extra liabilities on those who shoot in these areas, but offers
few management solutions.
Poole Harbour in Dorset is a Natura 2000 site
and is the largest natural harbour in Europe. It is the home to
tens of thousands of over-wintering and over-summering birds as
well as mammals. It is also the eastern end of the South West
Coast Path. It is a designated SAC, SPA and has numerous SSSIs.
Bird species are not particularly disturbed by
the boating use in the centre of the harbour but are highly dependent
for feeding and refuge on the at present unvisited and inaccessible
harbour edges and creeks, which by their nature are difficult
to access (being shallow water at high tide and mudflat at low
tide) and which are precisely where a coastal access strip would
therefore cause disturbance.
9. EXCEPTIONS
AND EXCEPTED
LAND
9.1 The basis for excepted land, and restrictions
and closure regimes should be the same as those set out in Schedule
1 & 2 and Sections 21—32 of Countryside and Rights of
Way Act 2000 (CROW) but there will need to be additional measures
due to the diversity of different business interests along the
coast.
Temporary Measures
9.2 There also needs to be greater flexibility
for closures or temporary diversions to allow for land management
practices whether ploughing, spraying, lambing, grazing bulls,
shooting or holding private events.
Most of the fields on this dairy farm have existing
rights of way through them with the exception of those adjacent
to the coast. These are the only fields in which the farmer can
put his dairy bull.
Access long the shore line would only be tidal
so any new right of access would pass through these coastal fields.
It would be necessary, for the safety of the users, to be able
to either close or divert the trail whilst the bull is out.
The trail would also pass very close to his buildings
and it would be difficult to manage a public right of access that
did not interfere with his twice daily milking.
9.3 There will also be a need to restrict
access onto beaches so that commercial functions can continue
to take place.
SOUTH DEVON/ISLE
OF WIGHT
Many private beaches are actually open to the
public, although in some locations the public might be restricted
to allow for community or commercial uses. Where commercial private
beaches have an intrinsic economic value and revenue goes to fund
the upkeep of the beaches, signage and management of the public.
The revenue per day can run into many thousands
of pounds.
Permanent Measures
9.4 Land that has been built upon should
be excluded from the statutory right of public access unless that
access is achieved through negotiation.
9.5 There is also the need to allow owners
of beaches, in particular, to exclude individuals who are behaving
in an anti-social manner. The management of beaches for the public
is extremely important and those using the beaches expect high
standards—if current levels of management do not continue
the high quality, clean, leisure orientated beaches will cease
to exist.
A number of holiday cottages are currently let
with exclusive access to a private beach.
If the beach was open to the public then the
price and level of occupancy would have to fall.
9.6 Paragraph 2.2.9 of the Outline Scheme
notes that restrictions, exclusions and diversions can not be
created in respect of situations that arise "that could not
be foreseen during the initial alignment process". On the
face of it this is unreasonable. For example, if the economics
of keeping livestock or growing arable crops were to change, a
farmer may decide to alter his farming system or intensity of
land use. This may mean it would be prudent to change the route
in some way. Is this something that could have been foreseen?
Moreover, Natural England may underestimate the level of demand
for a particular length of the route with the result that the
designated route is, say, insufficiently wide. Would it be possible
to divert the route in such a situation?
10. MAPPING
10.1 The precise areas of land subject to
the right of access need to be shown accurately on a map. Both
landowners and walkers need to be sure of the land over which
the route passes and the land designated as spreading room (at
least at the time of designation).
10.2 The landowner's liability towards people
entering the land will change in different situations depending
on whether the person concerned is a trespasser, invited visitor,
or is using a public right of way, CROW Act land, or proposed
coastal access land. As such landowners need to be sure about
what their liability is in each location.
10.3 There also needs to be certainty for
those who are walking the route, not only in terms of where the
route goes, but also where spreading room is located.
10.4 Signage alone will not provide sufficient
advice and will result in the open coast becoming cluttered with
signs, more akin to an urban area, rather than the unspoilt countryside
that people come to visit.
11. AN INDIVIDUAL
RIGHT OF
APPEAL
11.1 The current draft legislation and Outline
Scheme do not set out an appeal mechanism. Representations concerning
the scheme will be considered by Natural England and by the Secretary
of State, but this consideration relates to the defining of the
trail and the spreading room. The whole process from the drafting
of the legislation and preparation of the scheme through to its
implementation on the ground is controlled entirely by Defra and
its agency. For this reason it is a necessity for there to be
a right of appeal by the landowner or occupier aggrieved as a
result of the impact on his business or property.
11.2 As this scheme will impact on so many
different types of businesses in a variety of ways it is imperative
that anyone affected should have an individual full right of appeal
convened by an "independent body" (eg the Planning Inspectorate)
as is provided for by section 6 of the Countryside and Rights
of Way Act 2000.
11.3 Natural England and the Government's
determination not to recognise or compensate for financial loss
makes it all the more important for there to be the right for
an individual to appeal. This is the only way that the balance
between interests of the business/individual and the public interest
can be tested.
12. LIABILITY
OF LANDOWNER
12.1 The CLA is pleased that DEFRA has taken
on board the points that we raised and that there will now be
no liability in respect of "physical features". This
is satisfactory providing it is clear where the route passes and
to where the spreading room extends.
12.2 There is outstanding concern over activities
carried out on the land which have been established over many
years. The potential risks for farmers and shooters have not been
properly addressed in the draft Bill. These could be significant.
The Government needs to provide comprehensive guidance as to how
they will deal with such activities, if it does not then these
businesses will be affected and will suffer loss.
12.3 Much of the land through which the
trail passes will be used for keeping animals. As a result of
the CLA's campaign, the Government accepts that the strict liability
provisions in the Animals Act 1971 impose an unreasonable burden
on animal owners. The draft Marine Bill is an appropriate opportunity
to amend the legislation so as to achieve a fair and proportionate
balance between the competing concerns. The Animals Act (Amendment)
Bill is attached as Appendix 4.[6]
13. DOGS
13.1 There is an ongoing debate about whether
it is a necessity to keep dogs on leads or whether just "under
control" is adequate. The key issue is, however, not necessarily
the degree of control but the consequences of any loss of control.
A dog running wild causing livestock to scatter would be out of
control, but a dog that is fouling in amongst field scale vegetables
might be under control, but could also cause great loss to the
grower.
13.2 In any event there needs to be a definition
of "under control" within the Act.
A farmer on the coast grows vegetables for leading
supermarkets—stipulated within that contract is that dogs
should be excluded from the area.
14. HIGHER RIGHTS
14.1 The CLA expressed its opposition to
the imposition of higher rights (cyclists, horse riders and motor
vehicles) in our original response to the consultation.
14.2 All higher rights need additional facilities,
in terms of gates, surfacing etc...These would be difficult to
deliver and maintain in a coastal situation. Because of the inherent
dangers of providing any access along the coast granting any form
of higher rights would greatly increase risk.
14.3 The extra width of trail would greatly
impact on the hitherto unspoilt landscape and the increased land
take which would harm business further.
15. ALTERNATIVE
APPROACHES
15.1 The CLA accepts that quality access
to the coast is important. Indeed many of our members make their
living from it. However, in our view, and on the basis of our
experience, there are ways in which people could be helped to
make better use of what is already there.
15.2 People's knowledge of their access
rights is incomplete or, in many cases, nonexistent. Wider education,
information and promotion relating to coastal access and legal
rights would be likely to address this knowledge gap.
15.3 Many people speak of the lack or cost
of public transport, and poor facilities as being the biggest
barrier to utilising existing access. This suggests that policies
to increase access to the coast need to be holistic—to encourage
more people to the coast, the costs of trains and car parking
need to be brought into consideration. Indeed, the rapidly rising
prices are likely to deter more people from visiting the coast,
and therefore this will have an impact on the local tourist trade.
15.4 The evidence suggests that, beyond
those who are familiar with the coastline and actively visit for
the purpose of walking, most visitors congregate in the coastal
towns and do not stray much further. A challenge for increasing
access is how to encourage people from the towns to venture further
afield. It appears that this could be done most effectively by
improved visual signage, and very localised tourist maps.
15.5 Another key issue is maintenance. A
balance needs to be struck between improving access and maintaining
the existing access provisions. Indeed, the CLA questions the
need for new paths and areas, and would prefer to see budgets
prioritising the maintenance of the current paths and facilities.
In this way, the coast not only becomes more attractive but a
safer environment for visitors.
15.6 It is assumed that improved access
will encourage more people to visit the coast. To those living
close to the coast and those working in the tourism industry,
this is a positive thing. It will mean an injection of money into
the area and thus help the area to prosper. To those visiting
the coast from further away, they tend to assume that more people
will have a negative impact. They perceive it to mean more rubbish,
more crowds and the coast losing the very reason they are visiting
in the first place.
Country Land and Business Association
May 2008
1 Not printed. Back
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N2K/SSSI-Natural 2000 site / Site of Special Scientific Interest Back
4
IPSOS/MORI Coastal Access in England-April to May 2006 see http://www.naturalengland.org.uk/leisure/access/coastal/docs/Annex%202%20IPSOS%20MORI%20COASTAL%20ACCESS%20-%20FINAL_tcm2-31270.pdf Back
5
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6
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