Examination of Witnesses (Questions 180-199)
MR JO
BURGON, MR
TONY BURTON
AND MR
GWYN WILLIAMS
9 JUNE 2008
Q180 Mr Williams: There are provisions
within the Bill to have seasonal diversions. Do you think that
that is enough to protect the important species and habitats that
might be affected by this particular proposal?
Mr Burgon: I think by and large,
because these will be known areas where there are over-wintering
birds or tern colonies or whatever, one will find suitable routes
to take people away from those areas, so I think that is the way
in which in fact Natural England will be fulfilling its responsibilities
for protecting these sites under its nature conservation responsibilities
anyway, so they as an organisation will have to find the right
means to protect those interests and that might have to be several
metres, miles even, away from the coastline in some instances.
This will help to secure those sites and be based more on a sort
of regulatory regime rather than a voluntary regime such as Gwyn
has just described.
Mr Williams: In general, in terms
of diversions of the route itself, or indeed temporary restrictions
or in a few cases permanent restrictions over the spreading room,
I think, yes, that can work and I think there is reasonable evidence
from CROW that they would be observed.
Q181 Mr Williams: Do you conceive
of any situations where you may need permanent exclusion, over
a number of years, for instance? This path could be going through
SSSIs and we know that the state of many SSSIs is not as good
as it should be, particularly sensitive and vulnerable areas like
heathland and that type of habitat.
Mr Burgon: I think although there
might be spreading room the vast type of usage would be along
the aligned route because people are having a linear form of access
rather than free-ranging access. Our experience with SSSIs and
this type of access would say that we probably would not need
long-term solutions to that.
Mr Williams: This brings in the
question of estuaries. If estuaries were to be included fully
within the provisions, and particularly the spreading room provisions,
that introduces the need for long-term closures, in some cases
on straight safety grounds, in some cases because there will be
very high populations of breeding birds, particularly species
like redshank on salt marsh during the summer, and they would
be very heavily used during the winter. I think that introduces
the question of potentially those provisions being applied just
to make closures, so that part of the Bill at the moment I think
could be tweaked so that in estuaries the route only was made,
given that Natural England have taken the view that this is really
about onward passage rather than providing access to the route,
and indeed to that salt marsh and mudflat, recognising that it
is special and it is, out of all the coastal habitats, probably
the most dangerous.
Mr Burton: In some cases I think
it will be a choice of where the route is in the first place.
There may be shingle spits where you would not choose a route
around the shingle spit, so that would avoid the problem in the
first place. In others, such as estuaries, there may be management
solutions of the kind that Gwyn has described, although on the
face of it we think there should be a more positive approach to
looking at the opportunities within estuaries. We think that the
restriction around going to the first passenger ferry is too restrictive.
We think there are more opportunities but they have to be thought
through and there are sensitivities there. It is a combination
of two or three different factors which I think will enable the
right decisions to be made.
Q182 Mr Williams: Very often in the
sorts of habitats we are talking about it would be very difficult
to define the spreading land, would it not? There will be miles
and miles of land that people could wander over. Some of this
land may be covered by CROW as well.
Mr Burton: Yes, it could be.
Mr Burgon: The intention is to
take that regime out and put in the coastal access regime in its
stead but we have coastal commons now which are perfectly open.
I think it is self-limiting really because people will go on paths
that are maintained or walks across creeks, so you can do all
those informal management regimes across these areas and deal
with people's safety at the same time. I think a lot of this area
on the coast will self-determine the way in which people use them.
Q183 Mr Williams: What specific investment
and planning is necessary to ensure that the temporary and seasonal
diversions achieve what they set out to achieve? The RSPB mentioned
this in their evidence.
Mr Williams: Some of it I think
is about thinking about the way people enter an area, making sure
that the alignment processes are ideally following desired lines
and making it easy for people to use that area. In a few cases
it will need some signage, hopefully not too much, and in some
cases it may involve, as I have described with the terns, physical
fencing there that is far less about people management but may
be about management for the species concerned.
Q184 Chairman: Following on from
Mr Williams' line of questioning, one of the assumptions, certainly
in the context of the seaward side of the spreading room, is the
inclusion of dune areas as an automatic part. I am certainly aware
from part of my constituency on the Fylde coast that there is
very considerable sensitivity about the dunes and public access
to them and the impact that the public can have, particularly
at times when resources are limited to the proper management of
dunes. Are you entirely content with a position that says that
dunes are in or is it a question of coming back to, "Let
us look at it on a case-by-case basis"?
Mr Williams: I think this comes
back to what the default position is at the start of the negotiation,
whether a habitat is in and restricted or whether that habitat
is out unless it passes some special kind of public benefit test,
and in general with dunes we are content that they should be in
and then either seasonal or permanent restrictions applied if
the interest warrants it or if erosion problems or whatever occur.
In the context of estuaries we feel that that balance is the other
way round, particularly in terms of mudflats and salt marsh which
might otherwise be spreading room.
Q185 Chairman: I normally do not
like to talk too much about my own constituency but it does provide
a very good example of some of the problems that are presently
being faced in maintaining the dunes with very limited public
access where, for example, a local authority is struggling for
resources, if nothing else to do the necessary work on devising
a dune management plan. I am just a little bit concerned that
there is a lack of resource again in these rather specialised
habitat areas to achieve the objective which, if you like, the
default position might initially define.
Mr Williams: I think that then
comes back to the discussion we had earlier about the role of
the report, the way that is costed and the way that decision is
made, and I think it is important that that is made in a holistic
way.
Q186 Chairman: Coming back to the
estuary point, Mr Burton, you mentioned this question of you favouring
the normal tidal limit as being a point instead of the first pedestrian
crossing. Again, I have to have a picture to see in my mind about
this. When I consider, for example, the River Ribble on both its
northern and southern margins, on the northern margins if you
followed your normal tidal limit we would be marching through
salt marshes past a military aircraft factory, through the margins
of a not-too-well defined sewage works and tip on our way towards
a rather ill-defined, fuzzy finish somewhere in the Riversway
development in the middle of Preston, so I did not quite see that,
and the other way you would be marching happily across various
forms of high-quality horticultural land for vegetable farming
and a bit of cattle as well, and I can see a few problems there.
How are we going to deal with estuaries if you have your thought
that the first crossing point should be the defined limit as to
where this path may go?
Mr Burton: The first thing I would
say on this is that you will find, I think, most of the land uses
you described on the coast as well as on estuaries, so in a sense
those issues of fine horticultural land or military bases or salt
marsh or whatever will be issues that have to be addressed on
normal coastline as well as deep river estuaries. Our concern
is that we do not rule out the opportunities within estuaries
by default. This could create distortions almost by the happenstance
of whether there happens to be an economically viable ferry or
not across a certain estuary as to whether that estuary is or
is not looked at. We would like to see Natural England being asked
to look at estuaries in a more positive way. It may well be that
they then come up with conclusions which suggest that it is not
really practical in some areas, but there are many undeveloped
estuaries (and we point to a number of examples in the south west
in our evidence) where we think there is significant scope and
we also point to significant evidence that the public are really
passionate and care about and visit those estuaries. We think
there is an opportunity here for a more positive outlook as part
of the process and the same challenges about management and the
right solutions in the right places need to be played out within
estuaries as elsewhere on the coast.
Q187 Chairman: But if I take the
salt marsh areas I am acutely aware that from a breeding bird
point of view those are particularly sensitive areas at certain
times of the year, and you have made it clear that you would apply
various closed regimes to those. Do you feel that in the way this
legislation is to be implemented there is sufficient sensitivity
and sufficient safeguards built into it to enable your reservations
as experts in this field to properly be reflected in the kinds
of policies that would apply in the real world in achieving the
objectives you have defined? Obviously, from your experience with
CROW, you might answer in that legislative context yes, but this
is new and it is not CROW.
Mr Williams: Chairman, in the
context that you have described, and knowing the Ribble in your
constituency just a little but not hugely well, that site is an
SPA. We mentioned earlier that it would require that appropriate
assessment and I think that would lead to things being routed
in a way that legally would have to result in no adverse effect
on the interests of the site. I think the way that English Nature
and the Countryside Agency applied that system through CROW, and
that was an appropriate assessment, if I may say so, with small
a's rather than capital A's, was done objectively and reasonably
and some good decisions were made.
Mr Burgon: I agree with that.
I just think these are going to be applied more frequently and
more extensively on the coast because of the particular nature
and characteristics of the coast than they have been applied on
the open access land under CROW. The regime is right. The frequency
at which it is applied will be quite different, I think.
Q188 Chairman: I suppose the same
argument would apply in terms of spreading room?
Mr Burgon: Yes, exactly.
Q189 Mr Williams: I would like to
know both organisations' view on what is a growing controversy
and that is how dogs should be managed and if dogs should be allowed
at all.
Mr Burgon: We may have slightly
different takes on this. I can understand why it seems appropriate
to relax the regime for dogs under close control on the coast,
but we are going to have issues where dogs will need to be on
leads, will have to be restricted and in some cases even excluded,
so that comes back to the conversation we have just had about
how you apply the dogs regime in the checks and balances sense
over these sensitive sites. I suppose our default position is
dogs should be under close control but where it is important that
dogs are managed very closely, then clearly those regimes should
kick in, and there are seasonal dog bans on beaches. Natural England
recognise that those existing regimes will persist through byelaws
and all the rest of it. We will have a variety of different ways
of managing dogs for different reasons and it is just whether
you go down that route or the default position is dogs on leads
at particular times of year or in particular circumstances no
matter what the conservation issue is, but I will let Gwyn follow
that one through.
Mr Williams: This is an area that
we are quite worried about in terms of the draft Bill. We were
very pleased in CROW that the idea of dogs on short fixed leads
was accepted by Parliament. It comes down to this issue of close
control. One person's close control is a dog walking at heel.
In another case it may be the dog walking several hundred metres
away and then returning if called, and then there is that proportion
of dogs that are not really under close control at all. You can
imagine, again going back to the estuary situation, a person having
a walk on the sea wall and that is where the temporary restriction
is and the dog is roaming some distance away. Again, we can see
the difficulty the Government faces in that on public rights of
way the requirement is close control, and we have a huge amount
of de facto access where dogs are off the lead which will be affected
by this legislation. We feel that, if you like, the default position,
the starting point in the negotiation, should be dogs on short
leads as CROW requires at the moment, and then, if you like, it
should be up to the negotiation to decide whether that position
should be relaxed or not rather than the case being argued the
other way.
Q190 Chairman: If Roger will allow
me, I can see that as being a recipe for disaster. You are going
along and you have a bit that says "lead", and then
you get to another bit where somebody says it is close control.
There is going to be no supervision of this. Surely you have to
have an absolute one way or the other.
Mr Williams: There might be something.
I think this needs more discussion and thought on whether the
route, given that it would be akin to a public right of way, is
dogs under close control but in the spreading room the default
position is on the lead. I accept fully, Chairman, that this is
a difficult area. I think it needs thought.
Q191 Chairman: More work to be done.
Mr Williams: Yes.
Q192 Mr Williams: Under the proposed
legislation landowners would have a more limited liability for
people using the access if they got into trouble with natural
features, I think is the term, and this is similar to the CROW
legislation, but, of course, coastal features are perhaps a little
bit more extreme and a bit more dangerous than some that are met
on the land covered by CROW. Perhaps I can ask the National Trust
what kind of special attention should the Bill provide in terms
of liability provisions associated with man-made coastal defence
structures and old quarries and mines?
Mr Burgon: I am pleased that the
proposal is to extend the occupiers' liability to man-made structures.
Mines and quarries have been exercising me quite a bit because
we have quite a lot of old quarries, particularly on the Purbeck
coast, where we have had to fence them out under the Mines and
Quarries Act. There was a moment when I was thinking how you might
look at the Mines and Quarries Act of 1954 because the quarries
that were worked pre-1872 fell out of that. Everything from 1872
to the current day is an increased liability on the occupier,
so there is an issue over coastal quarries. The other issue though
is the relationship with the Health and Safety at Work Act and
section 3 in particular, which is the way in which the occupier
has responsibility for protecting that as a place of work and
people's connection with it. We have a slight concern that we
could find a rash of notices and guidance suddenly appearing for
all sort of reasons under two different types of legislation.
There does need to be a proper interplay between those so people
are clear. I was on the Suffolk coast last week and the number
of different notices and messages being given out to the public
was very confusing indeed. There needs to be some sort of rationalisation
in the way in which this information is given to the public so
that they can make their decisions about what risks they are prepared
to take so that we are giving them information but they are taking
the informed risk.
Q193 Mr Williams: Have you had any
assurance from Natural England that the lack of civil liability
will not lead to criminal cases being brought against landowners
by police authorities?
Mr Burgon: No, I do not think
so.
Q194 Mr Williams: You have not conceived
that that might be the result of this in terms of health and safety?
Mr Burgon: We have got some cases
in point at the moment which are to do with fatalities as a result
of falling branches killing people, sadly, and that is under health
and safety legislation rather than occupiers' liability. It is
the criminal route that is the process in the way in which we
are looked at in terms of our performance and management of risk.
Q195 Mr Williams: Do you think that
by reducing the level of civil liability more criminal prosecutions
could be brought?
Mr Burgon: They might and, of
course, we feel we have an extra duty of care as an organisation
that actively invites people to visit our properties, so we have
a heightened responsibility compared to an occupier whose principal
purpose is not visitors and promoting access.
Q196 Dan Rogerson: In the written
evidence that both organisations have submitted you have issued
a note of caution about the cost of the whole thing. What discussions
have you had with Natural England about the likely costs and what
do you think ought to happen in terms of those estimates?
Mr Burgon: We have just said we
think it is not enough and not much more than that, to be honest.
I suppose it is what is included. As far as I can see it is about
an establishment cost. The costing comes through the options appraisal
that was done by Defra in their consultation document last year,
and once you start to see the detail of this piece of legislation
and the way in which these access reports are going to be created
all sorts of thoughts start running through your head as to how
long this will take. I still think there is a lot of work to do
to look at the way in which these access reports are going to
be generated and produced. We have offered our experience on some
of our land to help Natural England in that next stage. There
is still an awful lot of work in progress in this area because
this is where you really do start getting into the detail, and
until that detail has been set up properly I think the true cost
of this will not be known.
Mr Burton: And that has to pick
up the long-term maintenance as well as the establishment, and
it has got to pick up the improvement/enhancement strand that
we were talking about earlier. £50 million is an absolute
shoestring which barely gets to first base on the minimal provisions
of the legislation. The economic analyses of the benefits of the
coastline in terms of studies done in the south west and in Wales,
each suggest well over £2 billion worth of public benefit
is coming from coastal activities. It is too small a slice of
the benefit which is going into effective delivery and it will
dramatically slow down effective implementation for the reasons
that we touched on earlier.
Q197 Mr Gray: If £50 million
is a shoestring and barely achieves what the Bill sets out to
do, roughly speaking what sort of figure ought we to have?
Mr Burton: I do not think you
are going to draw us on that one in terms of giving you a figure.
Q198 Mr Gray: You have got the experience.
The National Trust control the only substantial coastal path that
exists at the moment and here you are in front of this Committee
of Parliament and you are saying the amount of money the Government
has put aside, £50 million, is a shoestring, hardly enough.
Right: on the basis of your extensive experience I want to know
from you, if it is not £50 million what should it be?
Mr Burton: That is why we are
working with Natural England, to come up with a more robust figure
so when the Bill goes through Parliament that information will
be more available.
Q199 Mr Gray: But in terms of producing
our report we should know what you think. Are you saying you do
not know?
Mr Burton: We do not know how
much it will cost to implement the legislation, no.
Mr Gray: What should it be? £200
million? A billion?
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