House of Commons - Environment, Food and Rural Affairs

Select Committee on Environment, Food and Rural Affairs Minutes of Evidence

Memorandum submitted by the National Farmers' Union (DMB 63)

EXECUTIVE SUMMARY

1. The National Farmers' Union (NFU) is pleased to respond to the Environment, Food and Rural Affairs Committee inquiry on the Coastal Access Provisions within the Draft Marine Bill. The NFU has some 55,000 farmer and grower members in England and Wales and represents the great majority of full time commercial farmers. In the short time we have had available to examine this highly technical document, we have endeavoured to focus on the potential impacts on our members and our views will naturally evolve as the process develops and further information becomes available.

2. In principle the NFU supports access to the countryside, but it is vital that any work to increase the accessibility of coastal land is undertaken in partnership with the owners, occupiers and managers of the land who make a living at the coast. Over many generations farmers have managed the coastal countryside and have developed landscapes and recreational facilities which are appreciated and valued by local, national and international visitors. The NFU sees no evidence for strong public support for a long-distance route around the entire English coast, nor do we believe the approach will be cost-effective. This leads us to disagree with the Government's vision for coastal access. Therefore we believe that provisions for coastal access should focus on quality not quantity.

3. The NFU welcomes the concept outlined in the Draft Bill that there should be support for a "fair balance" with occupiers; however we are concerned that Bill itself changes the Countryside & Rights Of Way Act 2000 (CROW) balance in Natural England's favour. For example, we have serious concerns regarding problems arising from non-mapping of coastal margin and spreading room and also the fact that Natural England will take over the land manager's local discretion regarding restrictions, exclusions etc. We also believe that there are many other aspects of the Draft Bill that are in need of improvement, such as some provision for appeal where there are substantial disagreements between Natural England and those with an interest in the land, or where businesses and properties are compromised. There is also a lack of clarity on key issues, such as how the Bill actually delivers on our concerns for dog management and the possible exposure of landowners to liability. For this reason the NFU welcome the pre-legislative scrutiny process.

THE GOVERNMENT'S VISION FOR COASTAL ACCESS, AND THE EXTENT TO WHICH THE DRAFT BILL PROVIDES FOR IT

4. The NFU does not share this vision of "a coastal environment where rights to walk along the length of the English coast".[7] We believe that the costs of achieving this vision, of ensuring that it is maintained and the actual need for such provision, coupled with the practicality and land management implications of the vision, are such that an alternative approach should be adopted. We believe that a locally focused approach (ie local involvement and discussions), should concentrate on clear areas of need as a complement to existing stautory access, which itself needs to be improved. Hence our vision would be for an accessible and safe environment in which rural businesses, farmers and visitors can enjoy negotiated and improved access to the coastline that is managed cost-effectively by local access authorities taking into account the interests of wildlife, rural businesses and the economy.

5. In relation to coastal access the Draft Bill provides the Secretary of State with remarkably wide discretionary powers. We accept that this is a complex project and that it is desirable for there to be some flexibility to deal with unforeseen problems that may arise. However there should always be clear limits to the extent that enabling legislation gives the executive, in effect, carte blanche to create or rewrite law to suit their convenience without adequate Parliamentary accountability. In our view, the Draft Bill goes beyond these limits in some of its provisions, and also fails to define which land is "coastal margin". For example, clause 278 would give the Secretary of State wide-ranging powers to make orders specifying the descriptions of land which are "coastal margin" and modifying the provisions of the CROW Act in their application to land which is coastal margin. These modifications could include the conferring of functions on the Secretary of State and Natural England; and removing the right of appeal of land managers under section 30 of the CROW Act. This section allows appeal against the refusal, by an authority, to accept an application for the exclusion or restriction of access for reasons of land management or danger to the public, and providing for representations on such decisions and the review of them by the Secretary of State "in specified circumstances". Important existing safeguards for land managers should not be diluted or removed altogether on a ministerial whim. The application of affirmative resolution procedure to orders changing existing primary legislation is of little comfort. We hope that the Committee will recommend that enabling powers of this kind should be worded in a much more specific and limited form.

WHETHER NEW LEGISLATION IS THE BEST OR MOST COST-EFFECTIVE MEANS OF PROVIDING INCREASED ACCESS TO THE COAST

6. Although the NFU supports the provision of access we do not believe that a statutory, and therefore uniform, measure is the most appropriate method to achieve an improvement in coastal access across England. Research shows that generally when going for walks people prefer circular routes. Most walking trips are short with a mean duration of 1.7 hours and 86% of walks being less than three hours.[8]

7. The Countryside Rights of Way Act 2000 introduced a public right to walk across designated mountain, moor, heath, down and registered common land in England. A recent Natural England Report[9] on the National On Site Visitor Monitoring Survey 2006 provides some indication that despite the vast cost (some £69 million) of the introduction of this open access, it is not being widely used by the public. It must follow that a further extension of this policy must be judged carefully against value for the taxpayer and a realistic assessment of public use of the coastal access facilities being promoted.

8. At present the only research carried out to identify the need for coastal access was carried out on behalf of Natural England by Ipsos MORI[10] in 2006. The report states that "the majority are happy with the existing access they have to the coast; both the qualitative and quantitative research found that the access issues that did exist mainly centred around transport, such as crowded roads around holiday times or excessive car parking charge". In fact, a key point coming from the report was that "while people were generally happy with the access available at the coast, a key barrier was getting to the coast".

9. Having visited and consulted farmers along the coast, the NFU are concerned that the project will be vastly under-funded. The Essex coast alone is over 350 miles long due to the fact it is cut by numerous creeks and estuaries. Therefore it is essential that an accurate measure is made of the length of coast currently not serviced by access where new path establishment and infrastructure will be required. We also need a clear idea of the length of existing coastal access that will need maintenance or upgrading. We are already finding that existing paths are not being maintained. Again the Ipsos MORI report supports this by stating that "there is a general feeling among those living close to the coast that access is restricted due to poor maintenance. They are believed to have been abandoned by local councils". In some regions seawalls provide a coastal footpath, but not only is maintenance not being carried out in some cases there is a policy to withdrawal from maintenance of uneconomic sea defences.

10. The most recently published estimates of costs of the project were provided by the 2006 RPA Report, which is now out of date, and the more recent Asken Report[11] of May 2007. A provisional estimate of £5 million a year for 10 years was provided in the 2007 Natural England consultation document. The NFU appreciate that Natural England are currently revising the estimated costs of implementation and maintenance. However, we also note with some concern, that the establishment of the route no longer has a cut off date for completion (section 4, paragraph 4.11 of the Draft Bill Policy Paper) which leaves the project open ended. Without these revised estimates of both costs and the length of coastline proposed to be covered by this budget, and a timescale for implementation, then it is impossible to judge whether the project will be cost-effective.

11. The National Audit Office[12] report stated that by the end of March 2006 open access had cost £69 million. Ongoing running costs were expected to amount to £13 million in 2006-07. Rather than investing yet more money in opening up tracts of land to the public which in the main will be used rarely, and may in some areas be closed on nature conservation grounds, we believe that local solutions should be negotiated in areas where there is a proven demand for more access.

12. Importantly, the budgets of Local Access Authorities are already stretched and ongoing maintenance will be a serious concern. As part of our internal research into the impact of coastal access we have contacted four Local Government Authorities with a coastal interest. The consensus of opinion is that Right of Way departments have historically been, and remain, largely reactive to pressures. Most of their budgets are absorbed in making the network safe for users and free of obstructions. Consequently, there is little finance remaining to produce strategies to budget and plan for coastal access. Frequently, the general public wants more and better facilities such as car parks, public toilets, benches and litter disposal points. Consequently we question whether a walking trail around the whole of England will meet the needs of the majority. The Ipsos MORI research funded by Natural England in 2006 supports this in stating that:

"A balance needs to be struck between improving access and maintaining the existing access provisions. 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. In this way, the coast not only becomes more attractive but a safer environment for visitors".

13. One Local Government Authority has stated that they will have to create a full-time position for a coastal access officer to cope with these demands. If this was typical and each coastal LGA had to employ a full time coastal access officer, this would take up a significant portion of the funding Defra is offering. For instance, Bridgend County Borough Council is currently advertising for a coastal access project officer, with a salary of £20-24K. Assuming an average salary of £22K, but excluding National Insurance and Pension contributions employing one officer at each of the 43[13] coastal LGAs would cost over £900,000 annually, almost a fifth of the budget Defra have made available, without a single kilometre of footpath being created.

14. The evidence available on public demand and projected budgets leads the NFU to believe there are serious risks associated with the project being underfunded and of poor quality as a result. It is not in the interest of landowners or user groups to provide poor quality access or for the project to become a disproportionate drain on resource and effort. In addition, the Cost-Benefit Analysis of the different options for achieving continuous access (Asken, 2007) appears to be based on some tenuous assumptions, such that it will probably over-estimate the benefits of additional tourism created by displacing visitors from inland sites. Therefore, the NFU fears this could mount up to be a costly and protracted project with flimsy evidence of real public demand and benefit.

15. It is the NFU's contention that limited funds are much better spent making the walking experience better and safer where there is actually a need rather than the mediocre broad brush approach proposed. This leads us to restate that our preferred approach would be to seek high quality access where there is public demand.

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

16. In principle the NFU welcomes clause 273(3), which states that there should be "a fair balance between the interests of the public in having rights of access over the land and the interests of any person with a relevant interest in the land". However, this statement must be supported by adequate provision within the Bill in order to be meaningful. We note that in Natural England's outline scheme,[14] they state in paragraph 5.2.1 that the alignment process should "not interfere in any significant way with the operational need of businesses". Similarly, paragraph 5.3.1 also states that "the process will aim to ensure that coastal businesses suffer no significant loss of income from the introduction of coastal access rights". Given these pledges by Natural England, we believe that these objectives should be formally built into the Bill as a statutory duty.

17. For the proposals for access to the coast to be successful it is crucial to work with landowners and occupiers at a local level during the alignment process. Therefore, we are also pleased to see that clause 277, new section 55B (4) requires Natural England to consult those with "a relevant interest in affected land" as the co-operation of local occupiers will be crucial to the scheme's success.

18. However, there are many examples where a proposed coastal route will cause both direct and indirect loss of income or land and adequate compensation will be required. Private homeowners may also find themselves affected. A specific example of this would be private beaches. We are aware of farm businesses that have diversified and contribute to the coastal economy by offering holiday cottages with private use of beaches as a specific attraction to repeat customers. Not being able to offer this exclusivity will seriously undermine the attractiveness of the facilities offered by the business and hence future potential for income generation. Currently the only right an owner or occupier has is to make representations to Natural England on the Report which is submitted to the Secretary of State as set out in clause 277. The decision by the Secretary of State is final and there is no provision for further appeal—the NFU believes that the Bill should provide for local hearings into representations to take place where there are substantial disagreements between Natural England and persons, with an interest in land, aggrieved by their proposals.

19. The NFU understand the general policy of no compensation, but in certain circumstances businesses and properties will be severely compromised. It would seem entirely inappropriate and at odds with the statutory promise for a "fair balance" for the Bill not to provide a right of redress for monetary loss for those affected. Therefore the Bill should reserve powers for the Secretary of State to intervene where there are compelling circumstances.

20. Under clause 274 of the Draft Bill, Natural England is required to produce a scheme for the Secretary of State's approval setting out the approach it will take to discharging the coastal access duty. In the outline scheme published by Natural England to assist consideration of the Draft Bill the NFU notes the assurance under paragraph 7.4.5 that cropped land will not be included in spreading room and that the route of the trail itself will normally be sited along the seaward edge of both cropped land and grassland. However new s 3A(4) gives the minister a power to modify the categories of excepted[15] land which apply to coastal margin, and we invite the Committee to press Natural England on whether there are circumstances in which the assurance that no cropped land will be made part of the coastal margin may be undermined. Explanatory note 665 for clause 278 in respect of CROW Act new s 3A(5)(b), appears to imply that arable land could be included in coastal margin to allow the boundary to coincide with a physical feature. We would be relieved to be assured this is not the case. If it is the case then it obviously raises very serious issues for arable farmers which we would wish to pursue.

21. In this context it should not be overlooked that permanent pasture is not excepted land, so many livestock farmers may find that land which currently provides valuable grazing near the coast will become part of the coastal margin, with the attendant costs and management difficulties that will inevitably bring.

22. The NFU is also concerned that Natural England has suggested that field margins will normally provide an adequate positioning of the four metres-wide-path because "there will be a margin of un-cropped land that the trail can follow". Field boundaries are subject to Cross Compliance and many are in Agri-environment schemes. We would be concerned if pedestrian access on these field margins negated in any way the function of these features either through disturbance, compaction or conflict with any agri-environment scheme agreement.

23. If the path is to be a "typically" four metres wide (as described in paragraph 4.3.8 of the scheme outline), then in order to avoid any conflict of land use, arable farmers are effectively being asked to surrender cropped land which will result in a substantial loss of income. Paragraph 4.3.9 of the scheme outline describes situations where it may be necessary for the width of the trail to be narrower. Given the statutory charge to strike "a fair balance" as described in paragraph 16 of this document, then the convenience of agriculture should be balanced with the convenience of the walker. Therefore the NFU believes that provisions should be included within the Bill to minimise the loss to agriculture allowing for a narrower width of path through arable land.

24. The outline scheme, prepared in accordance with the requirement under clause 274 of the Draft Bill, states that for intensively managed grassland the trail will normally—but not always—follow the seaward edge of the field (section 7.5 of Natural England's Outline Scheme). In cases where the trail crosses a field this type of land will be considered as spreading room both seaward and, in some cases, landward to the nearest recognisable physical feature. The new coastal access rights will take effect by virtue of CROW section 2 (1) which includes activities such as picnicking. If such user activities are allowed on spreading room on grazed land, then the NFU is seriously concerned that there may be conflicts with both biosecurity and animal husbandry and welfare. We are firmly of the view that spreading room should normally only be planned over land that is extensively grazed and, preferably, unfenced on its seaward side.

25. Clause 282 refers to appeals relating to notices under clause 281 (ie establishment and maintenance of the route in absence of an agreement), however it makes no mention of compensation for costs incurred physically accessing the land for maintenance and establishment of the trail. Many coastal sites may be inaccessible or have unsuitable access for machinery that may be required for such maintenance or establishment work. For example, it may be necessary for machinery to cross cropped land, damaging crops or disrupting day-to-day farming activities. The only current reference to compensation within the Draft Bill is under Clause 286. This applies the CROW Act section 40 powers of entry to land to carry out any survey work and assessment of necessary works under clause 280. This includes safeguards, such as leaving land as effectively secured as found and also compensation provisions of section 41 for damage caused. Importantly, it does not make reference to damage caused during establishment or any ongoing maintenance work. The NFU believe that damage is more likely to happen in those circumstances than entry for inspection, erection of signs etc. under clause 286. This is an important omission and the Bill should be amended to cover it.

26. Similarly, under clause 281, Natural England have powers of entry to the land to do the necessary work if they have been unable to reach agreement with the occupier (clause 280) but again there is no comparable provision for compensation if they cause damage during establishment or maintenance work. This is an important omission and the draft Bill should be amended to cover it.

THE CASE FOR EXCEPTIONS TO, AND DEVIATIONS FROM, A ROUTE GIVING CONTINUOUS ACCESS TO THE COAST ITSELF

27. Provision should be made for seasonal or temporary closures to mitigate impacts for grazing livestock. There is an absolute right under CROW section 22, for the land manager to exclude or restrict access for up to 28 days per annum, subject to some conditions. Under section 23 the owner can keep dogs out for up to six weeks for lambing. Under section 24 the land manager can apply for a specific period of exclusion or restriction for necessary land management purposes with a right of appeal under s 30 if the authority refuses. However these rights for land managers under CROW appear to cease to have effect at the end of the preparation period by virtue of new s 3A(7) contained in clause 278. Moreover the Draft Bill provides that the Secretary of State may disapply the appeal mechanism under section 30 of CROW into applications by land managers for restrictions or exclusions for reasons of land management, risk of fire or other danger to the public, and limit the circumstances that representation can be made to the minister instead (if at all). Effectively this overturns the rights of appeal and safeguards that landowners and occupiers need under CROW.

28. It is envisaged that Natural England will replace land manager-initiated exclusions and restrictions with their own directions (explanatory note 667), and they appear to have in mind empowering for example wardens to determine dates for alternative routes for periods when birds are nesting (explanatory note 643), seemingly without regard being had to the farming implications that might arise from those decisions. The NFU believes that the land manager must have similar rights to CROW within the Draft Bill to close land and offer a mutually agreeable alternative temporary diversion. Our experience of the CROW exclusions provisions demonstrates that they are used rarely and that they do not significantly reduce the enjoyment of open country. It would also be desirable for the land manager to have rights to close spreading room landward of the route by temporary fencing when livestock management requires it. We appreciate the policy objective of providing public access to a coastal route at all reasonable times, short of exceptional weather conditions etc. However as drafted the Bill significantly alters the balance on exclusions and restrictions in favour of Natural England. We believe it goes too far, and must be reconsidered.

THE PROPOSED ARRANGEMENTS FOR LIMITING LIABILITY

29. The CROW Act amended section 1 of the Occupiers' Liability Act 1984 to remove liability of occupiers of open access land in respect of risks arising from natural features. The NFU believe that this level of reduced liability would be unsuitable to accommodate the added hazards encountered on coastal land. Therefore we welcome clause 288 of the Draft Bill (sub-clause 700) which now extends this exclusion of liability to "any physical feature (whether of the landscape or otherwise)".

30. However, the trail and spreading room will cross a very different and more managed landscape than on mountain, moor, heath and down. The public will effectively come directly in contact with the "factory floor" of the farming industry. We believe that this level of exclusion of liability should also be extended to other operational activities. For example, whilst un-cropped grassy field headlands may provide potential for pedestrian access in horticultural holdings, these headlands are intensively used by farm vehicles during the long growing season. The Bill should provide clear guidance on how these activities may continue so as not to damage businesses but at the same time expose landowners and occupiers to liability.

31. Increasing public access to the coast will inevitably increase the range of circumstances in which members of the public will find themselves in the vicinity of farm livestock, in many cases stock which are not used to the presence of significant numbers of humans. The NFU has been concerned that case law has disturbed the careful balance struck in the Animals Act 1971 between the rights of members of the public and keepers of animals regarding the circumstances in which keepers are strictly liable for damage caused by animals. We regret that the private member's Bill introduced earlier this year by Stephen Crabb MP, which was supported by Defra, was not able to progress to the statute book. It is important that that the public can be assured that keepers must take reasonable steps to ensure their animals are not a danger to the public, without burdening keepers with liability for damage they could not reasonably have foreseen. We hope that the Government will rectify the law in the early future, perhaps even by means of the Marine Bill as a vehicle.

THE LACK OF CLARITY REGARDING THE MANAGEMENT OF DOGS ALONG THE PROPOSED COASTAL ROUTE AND ASSOCIATED SPREADING ROOM

32. It remains unclear to the NFU how the subtleties of dog management will be delivered within the Bill itself, as currently there appears to be no direct reference to this key issue. Natural England has stated in section 2.2.3 of the scheme outline that dogs should be under "close control" at all times along the proposed coastal access route. Under paragraph 7.5.9 Natural England elaborate on this point by stating that "dogs may be restricted to leads where livestock are present. However, where there are cattle, signs should encourage dog walkers to let go of any lead if they feel threatened by the cattle". This is a significant change from the management restrictions under CROW which state under Schedule 2 paragraphs 4 and 5 that you must have a dog on a short lead (max. 2 metres) between 1 March and 31 July, and at any time of year in vicinity of livestock.

33. We welcome the fact that Natural England have recognised the comments made by NFU regarding the subtleties of dog management around different types of livestock, but the guidance is still vague and could cause confusion. This is because the phrase "close control" may be interpreted very differently by individual dog walkers. The NFU believes that dogs should be on a lead at any time of year in vicinity of livestock as described in CROW Schedule 2 paragraphs 4 and 5, but with the caveat described under paragraph 7.5.9 that "signs should encourage dog walkers to let go of any lead if they feel threatened by the cattle".

THE NEED FOR CLARITY ON THE MAPPING OF BOTH THE LONG-DISTANCE COASTAL ROUTE AND ASSOCIATED "SPREADING ROOM"

34. When the Committee takes evidence from Natural England we hope it will explore the exact intentions of the scheme in respect of mapping. Our reading of the draft Bill is that clause 272 provides an overall duty on Natural England and the Secretary of State to secure a long-distance route for the whole of the English coast and an associated margin of land to which the public will have access (the "spreading room"). This would be delivered by means of a series of reports from Natural England to the minister under the new s 55A of the 1949 Act contained in clause 277 which, because of the linkage to s 51, requires there to be a map of the route. By virtue of new s 55B the reports may include proposals for coastal margin (to which the public would have access through new s 3A of the CROW Act contained in clause 278) which may provide for the landward boundary of the margin to be wider or narrower than the normal application of new s 3A in order to coincide with a physical feature "to make the boundary of access land clearer on the ground or to bring additional land to the landward into the coastal margin" (explanatory note 647).

35. Crucially it therefore appears that the boundary of the coastal margin is not subject to a mapping requirement but instead relies on descriptions (or merely such a vague concept as "an indication of the extent", see para 2.3.4 of the outline scheme) in the reports. In its FAQs Defra argues at point 14 that the massive overrun in cost for the CROW scheme (£69 million instead of £28 million originally estimated) was largely attributable to the difficulties of mapping access land, and that similar costs will not arise for coastal access because of the use of description and signs on the ground rather than maps. This approach seeks to buy administrative convenience, and it is hoped the containment of excessive cost, at the expense of the ambiguity and misunderstandings on the ground that are bound to arise for walkers as well as for owners and occupiers of land if there are no maps of where lawful access begins and ends. Given that a reduced liability will be associated with the "spreading room", clarity on legal responsibility is essential to protect both the landowner/occupier and user. For example, landowners and occupiers need clarity on what their liability is in respect to access and where the line is drawn between "normal" and reduced liability associated with spreading room. The NFU believe there will be circumstances where there may be considerable doubt in the minds of landowners and occupiers resulting from a textual description alone. Precise maps of the coastal margin would be the optimum solution; if the Government is not prepared to pay for the certainty they would deliver, then at least the Bill should make provision for a mechanism to reduce the scope for doubt.

National Farmers' Union

May 2008