Examination of Witnesses (Questions 140-154)
MR HENRY
AUBREY-FLETCHER,
MR ANDREW
SHIRLEY, MR
PAUL TEMPLE,
DR ANDREA
GRAHAM AND
MR BARNEY
HOLBECHE
9 JUNE 2008
Q140 Mr Gray: Can I just pick you
up on a general point? I am perhaps interpreting a hint that both
Mr Aubrey-Fletcher and Mr Temple gave a moment ago. You both seemed
to me to be saying that you thought coastal access was a very
good idea, and improving coastal access over what we have at the
moment would be a good idea, and you have no objection to that
in principle, but that you saw no reason necessarily to have a
3,000-mile path or whatever it might be that goes from Newcastle
to Edinburgh via points in between, as it were, and that you could
think of nobody who would want to undertake that, or very few
people would want to undertake that walk, and that what you were
saying was let us find ways of improving access in those places
where it currently does not exist but where it would be sensible
for it to exist. Is that fair? Would you not accept that if I
was right in that observation, that is a fundamentally different
approach to the approach in the Bill?
Mr Aubrey-Fletcher: Natural England
have never really explained to us what the thinking is behind
having a complete path all the way round the coast. We always
said you need access where the public want to go, but access for
access's sake and the costs that go with that does not seem to
be a very good way to spend public money, and certainly the MORI
research, which you have a copy of from us and which I am sure
you have seen, makes it clear that the public do not want to go
everywhere. There are places they do want to go because they are
convenient and they know where they are and they can get there,
and there are places they do not think they would want to go.
Q141 Chairman: Who convinced Defra
that this was a good idea then?
Mr Aubrey-Fletcher: I am not sure
I am the one to ask.
Mr Shirley: Natural England, presumably.
Q142 Mr Gray: It is a fundamental
difference from the principle behind the Bill, is it not? We are
talking about all these details about fencing. It is all very
interesting but actually what both the CLA and the NFU are saying
is "We do not see why you want to have a path all the way
round the whole coast. What on earth do you want to do that for?
Let's find a way of improving access to those places where it
is needed," but actually there are large parts of the coastline
where no-one is going to want to go there anyhow. Is that right?
Dr Graham: If I can directly quote
Natural England's own report, the Ipsos MORI report of 2006, it
says, "The majority are happy with the existing access they
have to the coast." It goes on to say that most of the problems
are centred around transport, car parking charges, and whilst
people were generally happy with the access available at the coast,
a key barrier is getting to the coast. That is their own report.
Mr Shirley: I will not quote from
the report but it only becomes more challenging when people are
threatened with the removal of that access. The argument went
on that if you did not have a public right of way, a permissive
access, and someone removed it, would you feel aggrieved, and
the answer is that of course you would, but if the access has
always been there, why is it suddenly going to be removed? Most
landowners who grant access do so for long-term purposes. They
do not do it just for a few years and then withdraw it for aggravation.
Also, the other point is that quantity is not always quality.
I think that is not addressed. There is also a lot of talk in
the guidance about the whole objective being to improve the environment
of the coast but there does not seem to be anything that addresses
that. So all it is going to do is achieve a very quick, cheap
right of access, which may not be best for the user.
Q143 Mr Gray: Presumably you have
made these general points to the Government? What do they say?
Mr Aubrey-Fletcher: Jonathan Shaw
has been down twice to the West Country to look at it and we have
had many conversations with Natural England, but at the moment
Natural England are driving this and Defra take advice from their
agency, and that is the way it is going. We make our case to Defra
in the same way as we made it to Natural England.
Mr Holbeche: If I may just add
to that, I think it might well be worth pressing the Minister
on this. I believe he is giving evidence to you in a week or so's
time. I think the justification is actually largely political.
There is very little evidence of great public demand for this.
A cynic might wonder: there is no upper time limit for Natural
England to finish this. Will it be finished in 10 years' time?
Will it be finished in 20 years' time? How much money will be
spent between now and then? We shall see.
Q144 Mr Williams: I think both organisations
have made it fairly clear you would like to see an appeals process
retained. One of the consequences that might arise out of not
having an appeals process is that you might have more judicial
reviews as being the only way open to a landowner to put forward
his case and his rights. Have you had any thoughts about that?
Mr Shirley: As it currently stands,
that is the only way, and I think that the proposals are framed
in such a way that it is an expensive job going to judicial review
and the whole thing is based on the fear that someone will not
want to spend that money and therefore the Government or Natural
England might get away with it.
Mr Aubrey-Fletcher: The most important
thing about having an independent appeals process is that it puts
in place checks and balances so that we do not get to a situation
where landowners and farmers are forced into the position where
they have to go to judicial review or whatever, because hopefully
Natural England would be aware that there was an appeals process
and obviously would not want to get involved in it, any more than
we would.
Mr Temple: The appeals process
must be done on a local process so that you have the best understanding
of the situation.
Dr Graham: I actually contacted
our regional advisers last week and asked them whether they were
aware of any particular problems that our farmers were having
in CROW land and there was a resounding silence. One of the big
points to take out of that are the provisions within CROW that
are there at the moment, particularly through section 30 and having
that appeals process, that means things are working, or appear
to be working.
Q145 Mr Williams: One of the big
differences, as I see it, is that actually, after CROW there has
not been any more take-up of access in totality but actually the
coastal path could be slightly different.
Mr Aubrey-Fletcher: As I say,
I think the honey pot sites will be taken up but I think the natural
demand will be met. What we hope to see in time is a growth in
demand for access. It is good for health, as I said earlier, good
for people coming to the countryside and enjoying it, and some
of our members will benefit, but I do not think we need the whole
of England's coast opened up. That will be like open access; it
will not all be used.
Mr Temple: I think we can reflect
on the environmental schemes that are out there already. We have
something that works, or has worked in the past. Let us simply
improve it, and then you will get better buy-in.
Mr Shirley: I am not entirely
sure that just increasing the amount of access means more people
will use it. If it is taken difficult to get to because there
is no public transport or the roads are bad, then actually what
you might just be doing is spreading out those who currently use
it, which could be to the detriment of existing businesses. Whether
it is a success or not and whether people use access or not I
would probably argue is a much wider issue than just its availability.
It is what else the Government is doing to promote it proactively.
Q146 Mr Williams: Turning to compensation,
what proportion of owners or occupiers do you estimate would be
entitled to compensation from the proposals? How many of your
members would suffer real losses?
Mr Aubrey-Fletcher: In the back
of our submission there are 30-odd examples of potential. I hope
with an appeals process in place it would be quite rare because
we would not get there; we would find an agreement that did not
lead to a loss of value, but I cannot believe Natural England
want people to lose value or income as a result of this access.
It would be appalling if they did. I suspect they would like to
avoid it if they possibly can. An appeals process will, I think,
lead to very few cases where compensation would have to be paid
if it was available, and of course, you have to prove the loss,
which is also quite hard. I think this being frightened of compensation,
with an appeals process in place, I do not think there would be
very many examples where compensation would eventually be paid.
I would be surprised; put it that way.
Q147 Mr Williams: You do give a number
of examples in your evidence. How have you arrived at those figures?
Mr Aubrey-Fletcher: We asked our
members if they were worried, et cetera. We actually got quite
a lot of ideas. One of the most difficult ones is where you have
a business that depends on tranquillity and exclusivity. For example,
there is one in there where a member has a hotel where people
go to get married and it is exclusive, they can take it over,
take their pictures, run around and have fun, with no public going
through the middle of it. His business depends on that concept,
that model. If the access went through the middle of it, you were
trying to take a photograph of the bride or whatever and there
were people watching what is going on or passers-by, they would
lose business. So you would have an argument for saying, "I
have borrowed money, I have set up this business and this is the
model that is creating an income." Then the path goes by
and all that goes. Hopefully, what would happen is the path would
be taken away from it so that it would not affect the business.
Mr Shirley: We set up the Coastal
Access Forum, which was trying to get all those with a concern
over the way coastal access was being introduced, really to get
together and find some information to lobby with. Smiths Gore
are currently undertaking a survey of all the agents who sell
and manage coastal property to get a handle on some broad figures
as to the impact of coastal access. We wait for that outcome and
obviously would be happy to share that with you.
Mr Aubrey-Fletcher: Of course,
the parks and gardens will stick that up hugely.
Dr Graham: Can I also add that
there are unseen costs which nobody has actually mentioned yet.
For example, if you look at the grazing marshes in Lincolnshire,
the cattle there are out for six months of the year. They become
quite feral during that time and extremely skittish around people.
There are cases and examples we have been told about where if
you have walkers going through those areas they can disperse the
cattle, which can take several days to coax back in at the end
of the year. The cost in terms of the time for the landowner or
farmer to actually coax those cattle back again is something that
is very difficult to put in financial terms but it is a cost that
I would like to at least have noted.
Mr Temple: You could also reverse
this in some circumstances. At the moment there are a large number
of coastal footpaths that run on the top of sea defences, and
some of these sea defences are not being maintained. In fact,
the farmer who runs up to them in some circumstances is being
prevented from maintaining the sea defences, which is actually
the footpath. You could ask yourself: that footpath should be
maintained, I am prevented, what impact might that have on my
business? So it can be turned round the other way when you see
where some of the existing footpaths actually are.
Q148 Mr Williams: When Natural England
gave evidence to us, they said that compensation would not normally
be paid. What is your understanding of when Natural England or
the other access authorities might compensate individuals?
Mr Aubrey-Fletcher: Martin Doughty
told us there would be a presumption against but, as I understand
it, there are circumstances under which loss of value under current
law can be claimed. I do not know what they are but I gather it
is very difficult to achieve because of the difficulty of proving
value at the start of the process and proving value at the end
of the process. Compensation is not an easy thing to prove.
Mr Shirley: I am slightly cautious.
If there is a presumption against paying compensation and there
is no provision for it in the Act, I am not sure how you would
make a case. If it got "too hot", perhaps Natural England
may pay you some compensation but otherwise they would not. Just
going to the point, if you look at the Asken report, which formed
the basis of this, they said only 10% of people who have been
subject to Path Creation Orders actually claimed compensation,
although there might have been some accommodation works.
Q149 Mr Williams: Do you think the
possibility of some compensation might oil the gears of negotiation?
Mr Aubrey-Fletcher: I would put
a lot of faith in the appeals process. If you had an appeals process,
I think—
Mr Temple: I am not convinced
there is sufficient money behind this to adequately deal with
the problems. The language we are actually using in the sense
of having to deal with this, to my mind, indicates that we know
or can realise there are going to be some problems out there.
If we go along the voluntary approach, we bypass that whole area
of requiring compensation so we can target the limited resources
to maximum effect, without getting into this whole area of compensation.
Q150 Dan Rogerson: I assume one of
the benefits of the mapping approach is that it does settle once
and for all what the potential impact might be on value and approach
to the businesses, because where that does not happen, there could
be something hanging over on an open-ended basis to the landowner.
Is that something you have raised with Defra and Natural England?
Mr Aubrey-Fletcher: Very much
so, yes.
Mr Shirley: Yes, if mapping is
once and for all. Of course, the legislation is not once and for
all, so in 30 years' time someone can come back, knock at your
door and take another chunk. I think that is a problem. I think
mapping is important for two purposes: firstly, so that walkers
know exactly where they can go and what they can do but, secondly,
so landowners know where the public are supposed to be and, if
there is an injury, whether they are liable or not.
Mr Temple: There is an incredible
cost attached to mapping these things accurately, and again, on
shifting shorelines, that is really difficult. At what point do
you come back and re-map it? If we are talking about sea walls
being moved and some sort of managed retreat, it is all to re-map
constantly.
Q151 David Lepper: We have talked
about compensation but there is some provision, as I understand
it, being suggested for the contracting authority to contribute
towards the cost of establishing and maintaining routes. Have
either of your organisations come to any view about how helpful
that is or what kinds of costs your members might incur in establishing
and maintaining these routes? There is also something in the proposed
Act about the contracting authority being able to reclaim the
cost from the landowner if the route is not satisfactorily maintained.
What sort of estimates of costs, if any, have you made?
Mr Temple: That is really difficult
to actually put a figure on, because it depends whether something
will be well used or not. If it is a stable soil, it is a different
entity to a clay soil. These are the unknown factors that fill
our members full of dread, and we have not had questions satisfactorily
answered. I am sure local authorities are equally concerned as
to the liability that might be incurred. A couple of weeks ago
I happened to walk along a coastal footpath that is a well-known
footpath and it itself was in a poor state of repair and I was
thinking, "If the local authority cannot repair their existing
footpaths what hope have we got if we extend this further up the
coastline?".
Q152 David Lepper: I am assuming
your members would have the same view?
Mr Aubrey-Fletcher: Absolutely.
Of course, every case is different. It is not just the soil but
what is in the way, what are the constraints, what do you need
to do to get round something when bits of coast collapse now and
again. They are huge issues to have to deal with and I do not
know where the £50 million over 10 years came from but it
will not begin to pay for the cost of it if they do it over the
whole country.
Dr Graham: And, of course, more
popular areas would have more wear and tear than less popular
areas and there is no way of predicting that at the moment.
Q153 David Lepper: You are actually
saying to us that your collective views are that it is unclear
who would be responsible for the maintenance of the route, whether
it would be the landowner or whether it would be Natural England
or whether it would be the local authority?
Mr Williams: I assume that it
would be the local authority. I do not think it would be a landowner
unless there was an agreement for the landowner to do that, but
there will be expenses that the landowner will have to bear.
Mr Aubrey-Fletcher: We are assuming
what will happen is that the local authority will be the responsible
delivery body advised by Natural England. I imagine that is how
will happen and I am assuming Natural England will provide the
cash for the local authority to do what they have to do.
Dr Graham: When those local authority
budgets, which are already extremely stretched, run out the question
then is who then picks up the tab later on in order to keep those
routes open and safe.
Q154 David Lepper: Are those points
spelled out anywhere in the Bill about responsibility for maintenance?
Mr Holbeche: I do not think they
are. I think they are a matter of administration. The evidence
from Natural England last week suggested that they would pump-prime
the system. No doubt they can clarify this for the Committee,
but, as has just been said, it would then be handed to the access
authorities. If the access authorities are broke then you have
made an investment and you might not be able to maintain it.
Chairman: Thank you very much. You have
given us a lot of very useful food for thought both in terms of
your oral answers and your written evidence, so can I thank both
organisations very much indeed for their contributions. If after
this there are any further points you would like to draw to the
Committee's attention, as always we will be delighted to hear
from you.
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