Examination of Witnesses (Questions 120-139)
MR HENRY
AUBREY-FLETCHER,
MR ANDREW
SHIRLEY, MR
PAUL TEMPLE,
DR ANDREA
GRAHAM AND
MR BARNEY
HOLBECHE
9 JUNE 2008
Q120 Chairman: Is that what you mean
by "balance" though?
Mr Aubrey-Fletcher: I think that
is right. If land is provided free, the access to the land is
provided free, that is the role played by the landowner, and then
any costs involved in doing that, including loss of value or loss
of income, should be borne by the state in whatever form, the
local authority or whoever it may be. I do not think you should
have a transfer of value from the farmer or the landowner to the
state and therefore to the user. The user cannot pay for the access
direct but the user is getting a benefit from access to that land,
and anybody can have that; it is open to the public, therefore
it should be paid for through the tax system in one way or another—not
the access but the cost of that access.
Mr Shirley: I think the balance
between the perceived public interest and the private interest
needs to be judged individually, not only on a global scale. You
could say for various reasons it is very good to have a round-the-coast
path and there is a number of people that want to do it, but it
should be able to be challenged on a holding by holding basis,
because every business is going to be impacted slightly differently,
and it is only when you can actually challenge the system that
you get a balance, a reasoned argument. The problem with the process
as it is at the moment is that there is not a right of appeal
and the Secretary of State's role is all part of the process.
So if you come to the end of the process and you are still not
happy, there is no right of appeal, which seems strange in a system
that the Secretary of State and his agency have devised throughout.
That is why it is very important that everything is open. If you
were to go for a Public Path Creation Order, for example, it would
be examined by the Planning Inspectorate if the landowner were
to object, and then you achieve the balance of what is public
interest and what is not.
Q121 Chairman: Do I take it from
both of you that, rather than try to go through a very difficult
rewriting of this clause, the fair way to deal with disagreements
over fair balance would be to have that as part of an appeals
mechanism?
Mr Aubrey-Fletcher: An independent
appeals mechanism, yes.
Q122 Mr Williams: I thought, Henry,
you put it very neatly when you said the landowner provides the
land free and the state pays the cost, but then you went on to
say that part of that cost would be compensation for loss of value.
That is not actually providing it free. I do not want to go into
a great dissertation about the theory of value, et cetera.
Mr Aubrey-Fletcher: But there
would be a cost if as a result of that access the corridor does
not avoid the business and as a result that business loses value.
There is a cost.
Q123 Mr Williams: So it is not so
much land value as business value.
Mr Aubrey-Fletcher: Yes. It would
then put the onus on the authority determining the route of the
corridor to make sure that they avoided loss of value, whether
it be to farmers or whatever. It just seems unfair to the business
that it loses value and somebody else is benefiting from that
access but it is actually costing the owner or the farmer. That
to me does not seem very fair.
Q124 Dan Rogerson: It seems to me
that we are preparing here for what could be lengthy negotiations
and sets of disagreements on a case-by-case basis. Do you anticipate
that there could be an awful lot of disagreements between access
authorities and landowners?
Mr Aubrey-Fletcher: No, the complete
opposite, because what will happen is, because you have this independent
right of appeal, Natural England or the local access authority,
whoever had the responsibility, would do their level best to prevent
a situation where costs were incurred, because obviously it would
hit their budget. That is why it would work. I suspect the negotiation
would be better and faster, and it would only be in a very small
number of cases that agreement should not be arrived at, which
is exactly what you have now under the Highways legislation at
the moment.
Q125 Dan Rogerson: Looking at what
you think any disagreements or any negotiations would be likely
to be around, do you think the concept of spreading room in particular
is crucial to that, and that that has involved far more work in
discussion than the actual route itself?
Mr Aubrey-Fletcher: I would be
cautious to speak on the farming, but on the spreading room in
relation to non-farming businesses, it depends where the spreading
room goes and what it is. It is a very difficult question to answer
because every bit of coast is different and every area of spreading
is different.
Mr Temple: That is a particularly
relevant point. Every aspect of coast is quite different. It is
very difficult to have one uniform rule that sits neatly on top
of it. If you are an arable farmer on a relatively flat, stable
piece of coastline, there is no need for a four-metre strip, because
then you might feel the necessity to put another zone in to keep
the crop away from the walking public, and you could end up with
that kind of confusion. A livestock farmer who previously has
not had people moving across his land, does he start fencing off
this particular area and the consequences that go with it? As
Andrea mentioned, where do dogs fit into this? Are they just allowed
on that four-metre strip or if you let them loose, where do they
go? That runs into the aspect of liability: who is liable for
what? The liability aspect is one of the biggest grey areas in
all of this.
Q126 Chairman: Can you clarify one
small point? If I walk on a public footpath through the middle
of a field of livestock under the present arrangements, and a
cow or a bullock does not like the look of me and decides to knock
me over, where does liability lie?
Mr Holbeche: I would probably
have to give you notice. It is a very complex area of the law,
Chairman.
Mr Temple: What I will say is
it is slightly more risky when you are on the edge of a cliff!
Q127 Chairman: I will remember that.
Mr Temple: We had this discussion
literally. An inquisitive cow that is not actually going to attack
somebody comes running up and that person steps back. You stand
a real risk of falling, and it does not matter if it is six or
ten feet, it is still a risk.
Q128 Chairman: The reason I asked
the question is that in some of the briefing the question of liability
in terms of this Bill, it is almost as if we have just discovered
liability, and I reflected on the fact that at Christmas I did
go for a walk in Dorset across a field with some rather lively
young bullocks in there, and I was wondering what happens if ...
Anyway, I got out before the question was answered—safely,
thankfully—but it did occur to me when I was reviewing some
of the evidence that this question of the relationship between
human beings, individuals, and livestock is something which on
a public footpath already exists. Perhaps you could reflect on
that and if there is anything to tell in a little more detail,
I would find it interesting.
Mr Shirley: You should not have
a dairy bull where there is a footpath anyway, and presumably
the same might apply to coastal access. It would all come down
to whether the owner was negligent. That is the issue. I think
you are going to be in a position where someone is going to look
for someone to blame. Even Natural England said in their State
of the Countryside report that we are in a much more litigious
environment than we have been.
Q129 Dan Rogerson: As I understand
it, if someone just decides to take a long step and go off a cliff,
the landowner is not responsible. There is an issue in the Bill
about livestock which means that if it is livestock, you could
well be liable. There are incentives to try and make sure, as
I understand it.
Mr Aubrey-Fletcher: We recently
tried to get a Private Member's Bill to go over the business of
animals not behaving as animals normally do, but unfortunately
... We would be quite keen to get that into the Marine Bill if
that were possible.
Q130 Dan Rogerson: The Ramblers Association
have talked about the need for involvement of user groups when
determining these issues around spreading room and the route and
so on. What is your reaction? Do you think that would be helpful
in order that everybody has the chance to get views across in
the light of the sort of process that you are discussing of it
all being settled amicably?
Mr Aubrey-Fletcher: As I said
at the beginning, we are very much in favour of improved access
and people taking advantage both of the access that is there and
improving some of the access that is not very good so that more
people use it because of the health agenda, education, and all
the things I said at the beginning about people learning to understand
the countryside.
Q131 Dan Rogerson: But in terms of
determining how it should be managed and what it should look like,
presumably you would think that would be a good thing as well.
Mr Shirley: My concern is where
the whole system starts, and Natural England have not explained
that. From the session last week it would appear that they desire
that the Bill is passed and becomes an Act and suddenly all the
landowners are going to ring up and say, "Can I have a word
with you?" Actually, what would happen in reality, I would
imagine, is that local authorities will get suggestions from user
groups. So I think user groups are going to be involved at the
beginning anyway but there still needs to be this address of balance.
Mr Aubrey-Fletcher: There is a
role here, I would imagine, for the local access forums, to get
young people on to the local access forums, who will work with
the local authority responsible for access. Their views can be
got in that way. Certainly, with local people, where you have
supportive landowners, knowing local young people, there are opportunities
for communication between them there as well.
Q132 Dan Rogerson: Finally, the issue
where landowners have already gone through the process under the
CROW Act, how many circumstances do you think there are going
to be where they are going to have to revisit it or go through
it again if the provisions come in as proposed?
Mr Aubrey-Fletcher: The take-up
under CROW has not been enormous, except in honey pot sites. There
has not been huge take-up of the wider open access areas. I do
not think that will be the same with coastal, because coastal
is very popular, especially in the summer months, and may well
become more so; if the cost of travelling elsewhere goes up, people
may come to the coast more, which would be good for businesses
on the coast. I imagine we will see more take-up of improved coastal
access. I do not know whether we will get more take-up of extra
coastal access, because you have to ask yourself really why that
access has not been developed in the past when there is a perfectly
good mechanism for doing it. Where there have been these voluntary
schemes and Highways Act schemes, they have been because they
are driven by demand. Where there is not access at the moment
is usually because you cannot get there, the access to the access
is not very good, or it is expensive to get there, or there is
not much in the way of a local town or somewhere to stay or whatever
to encourage you to go there. I suspect this will be driven because
there will not be enough money to fund this and do it properly,
as Paul has said. I suspect it will focus on the honey pot areas
where the demand already is.
Mr Temple: I think farmers would
welcome sensible access and the opportunities of rural development;
access tourism is in some parts of the country really important,
and if we have an opportunity to do this well and properly and
offer it to more people, we should look to that. There are the
aspects and the implications for local authorities if it is got
wrong. There is the aspect of maintenance, and a surprising number
of our members point out that nobody is clamouring for access
to large areas of this coastline, and these areas have been undisturbed,
and I think undisturbed areas in this country are few and far
between now.
Q133 David Taylor: We were talking
earlier about where cost and benefits might fall and just a moment
or two ago we were talking about the need to protect ramblers
from stock and the stock from ramblers. Someone—it might
have been Mr Temple—quoted the fencing cost of £4.50
per metre. What type of fencing would that provide? Would it be
stock-proof?
Mr Temple: Yes, that is what we
call pig netting and two strands of barbed wire, which is basic,
stock-proof fencing.
Q134 David Taylor: So to fence the
350 miles of Essex that was referred to earlier would cost about
£2.5 million, which some would consider might be good value.
Mr Temple: No, it would cost substantially
more than that.
Q135 David Taylor: I am just going
by your £4.50 per metre, and £7,000 per mile, 350 miles,
is £2.5 million.
Mr Temple: I think if you calculate
it, it will come to a little bit more than that.
Q136 David Taylor: To me, that does
not seem unreasonable value for a densely populated area of the
country like Essex to get access to its coastal margins and be
protected both ways.
Mr Temple: Have we got a calculator?
Dr Graham: That is just the cost
of the actual fencing. You have obviously got to put that fencing
in place and then maintain it.
Q137 David Taylor: I understand that
but I was just using Mr Temple's figure.
Mr Temple: It is about 500,000
metres.
David Taylor: Which is £2.5 million.
That is what I said.
Q138 Mr Williams: I am just questioning
this fencing business. How does that relate to the spreading land?
Surely, the whole purpose is not to prevent the walkers and livestock
coming into contact because, if you do that, you would just have
lots of land that has no livestock in it. What is the purpose
of this fence?
Mr Temple: I think these are the
unknown factors.
Q139 Mr Williams: Is it to stop people
falling off the cliff or what?
Mr Shirley: It is all part of
the risk you take when you manage land. That is why it is quite
important to get something within the draft Bill that refers to
the Animals Act and tries to take away the responsibility for
the non-negligent type activities that might happen so the farmer
is not responsible and therefore perhaps he will decide that he
does not want to fence out the path, but there will be times when
he will want to fence out the path because the land across which
a new coastal route will pass will be one of the few fields he
might have to put his dairy bull in, and therefore he will need
to separate the public from the animals. It also depends on the
nature of the spreading room. Spreading room is going to cover
a huge area and it might make management in some areas very difficult.
In other areas spreading room is not going to make a great deal
of difference because people walk straight on, because that is
what they are there to do, but if it is near a car park, for example,
I can see that changing from an agricultural field almost to a
public park, and with that you have all the management responsibilities:
who is going to pick up the litter and whatever else is left behind?
Dr Graham: If I can just add to
that as well, I certainly think if you have adequate dog management
there, that would certainly go a long way to mitigating the situation
in the first place.
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