Examination of Witnesses (Questions 340-359)
MR DUNCAN
GRAHAM CBE, MR
MIKE JENKINS
AND MR
LESTER WILLMINGTON
11 JUNE 2008
Q340 Chairman: Do you share Mr Graham's
view about getting in early and that you really ought to be part
of the route-setting function?
Mr Willmington: Yes, we do, and,
I think, if we were the access authority and also the contracting
authority, then it would make a lot of sense to have the local
authorities engaged in the process very early, because, again,
I think we would agree with Mr Graham, there would be some sense
in getting local information and local input to the development
of those trails. In our case, in Devon, we already have aspirations
as to where that trail might be and we are trying to negotiate
those gaps and being largely successful apart from the last 12
kilometres. So we could, I think, contribute well to that process
if engaged early.
Q341 Chairman: Can I ask you about
the sensitive area of the spreading room, because basically Natural
England have said, "We are a sensitive body. Trust us. We
will come up with the right answer." Do you think that the
Bill itself needs to have a tightening up, a change in definition,
something added to it to deal with the sensitivities that have
been expressed about this concept of spreading room?
Mr Jenkins: I think the proposals
largely reflect how it is operating at the moment. We have a coast
path, it is quite close to cliff edges, because that is where
walkers want to go, and they do wander close to the cliff. I think
from the outline scheme, it is a good reflection of how it operates
at the moment.
Q342 Chairman: Mr Graham, is there
anything you would like to add on that?
Mr Graham: Yes, I do think that
it is a very awesome task that faces Natural England, and I am
not being in the slightest critical of them—it is a Quis
custodies custodiat question—who guards the guards,
as it were—and my solution to that is involvement of local
people in every stage of this process at the local level to keep
those involved working together. I think one has to emphasise
the quality and the equality of partnership in this kind of thing.
There should not be talking down, and solutions should be worked
out locally. I am sorry if I am repeating myself.
Q343 David Lepper: Can I pick up
one point you made, Mr Graham. I think you said there was a sense
of déjà vu about the discussion on parks
and gardens?
Mr Graham: Yes.
Q344 David Lepper: Does that suggest
that, where your local access forum has been involved in the issue,
there have been amicable settlements over issues of parks and
gardens without people feeling that their privacy was being encroached?
Mr Graham: We have not done parks
and gardens in the sense that we were talking about just now,
but my experience leads me to believe the process will be essentially
the same. In open access there was a legislative framework which
was there if people were going to be unreasonable, and I think
that safeguard should be there in this case. I worry about exemptions
on purely practical grounds. Remember, in Cumbria have got the
largest open access area in the country, and we have resolved
every dispute amicably and now people just look bored when you
talk to them about what used to be battle grounds. So I think
you have got to bite the bullet and get on with it. Every single
piece of ground is different and you cannot apply very much in
the way of general principles to it; you have got to work it out
with commonsense. If a garden is small, it is not going to be
very difficult to go round it. If it is bigger, then the task
is so greater. It is commonsense, is it not?
Mr Willmington: Can I answer your
previous question, where we would agree that there is a need for
further definition of some aspects of the Act or the Bill as it
is currently laid out. There would have to be some clarity about
spreading room and what that actually means, like definitions
in gardens and things. We have tried to explain the different
definitions that we have put on to what might be construed as
a formal garden or an informal garden. That, I think, would be
important for us too. I do not know if you are going to come on
to this, but there are concerns that we have about maintenance
of the routes.
Chairman: We are going to come on to
maintenance, so there will be plenty of time. It would be helpful
perhaps if you could drop us a line, because it is not easy to
do, in the nicest sense, off the top of your head. Where you very
interestingly said that you felt there should be some more definition
in the Bill on some of the aspects of spreading room that you
wanted to reflect on, if you might drop us a line and describe
in a little more detail how you might like to see that tackled,
we would find that extremely helpful.
Q345 Mr Williams: One of the aspects
that has been raised by a number of people who have given evidence
to us is there is a clause in the Bill that lays a duty on Natural
England and the Secretary of State to strike a fair balance between
the interests of the public and, indeed, the interests of any
person with a relevant interest in the land. I know Devon County
Council has said that more consideration needs to be given to
that if this whole process is going to work properly and as easily
as possible. Have you got any ideas what detail should be included
in the Bill to provide greater clarity about the need to strike
a fair balance between public and private interests?
Mr Jenkins: A number of business
are likely to be affected by the proposals and, I think, where
it can be shown that there is a financial loss, then it would
be a reasonable assumption that that loss could be compensated
for. I think we were thinking particularly about businesses.
Mr Willmington: And also privacy
and operational needs, and you have touched on this earlier when
you were talking to Ramblers about areas that are cultivated or
grazed.
Q346 Mr Williams: One of the issues
that has been raised by a number of witnesses is the right for
appeal against the decision by Natural England or the Secretary
of State. Do you think that would improve the balance between
public and private interests? At the moment it would be very difficult
for a landowner. If they could not come to an accommodation, an
agreed line, I think the only way forward would be to go to court
on it, and I think that would seem to be excessive to people.
In the CROW legislation they did have a right of appeal, but in
this legislation there is no right of appeal.
Mr Jenkins: There is a right of
appeal with regard to the creation of routes certainly embedded
in the Highways Act. We do deal with a lot of inquiries. I think
you are right, it would be important for landowners because they
want to be able to have their opportunity to make sure that their
concerns are aired publicly.
Chairman: Thank you very much for that.
Q347 David Lepper: We will come to
this question of maintenance that you have already mentioned,
Mr Willmington, but, firstly, the £50 million that Natural
England calls a robust figure for the first ten years of setting
up, and so on, would you, from the county council point of view
and the access forum point of view, feel that that is a robust
figure for the set-up costs?
Mr Jenkins: I think that the scheme
as it stands with the fact that there is no compensation, it probably
is, five millions pounds a year for the next ten years.
Mr Willmington: It depends what
it covers. It depends what is included in the setting up of the
route. Again, the compensation aspects of the route may make a
big dent in that money if that were included. Does it include
all aspects of the setting up process, including the signing,
interpretation and the maintenance of the route over that ten-year
period?
Q348 David Lepper: Mr Graham?
Mr Graham: Leaving aside the question
of maintenance for a moment, I think it is such a ball park figure
that it requires some definition about standards, such as the
local authority might have and Natural England might have. It
is the managing of it that I think is worrying. My gut reaction
from the cost of what was done in Cumbria is that five million
is a pretty optimistic figure, but I cannot suggest a better one.
Q349 David Lepper: In terms of looking
further ahead even than the ten years, are you clear who is responsible
for the continuing maintenance into the future of the routes that
are established?
Mr Jenkins: It is not defined.
Mr Willmington: I think it is
a worry that we have about this being an additional burden on
local authorities. If you are going to create a route of a standard
that the coast path is currently, it does need continual maintenance,
a continual process of inspection, and that also extends to the
aspects of spreading room that are included. Are there private
accesses to foreshores, for instance, and who is going to make
sure that they are maintained and in a fit state for people to
use? Again, that is part of our concern in terms of this being
a burden on local authorities generally.
Mr Graham: Speaking, in this sense,
independently, because you would expect local authorities to say
that, I think they have a very strong case indeed. I go back to
the rights of way improvement plans which every authority drew
up, because they are on the whole rather good. They stand virtually
unimplemented because there just was not the money for it. I know
what are the political priorities in local government, rightly
or wrongly: they are things like pot holes in the road rather
than maintaining rights of way. Therefore, I think there should
be a clear, unequivocal answer early on as to maintenance. I also
look at the five million per annum, because if some areas are
done in the first year, they are going to need maintenance by
the fifth or sixth year, and is that part of the five million
or is that a separate budget? I think the nettle has to be grasped
one way or another, and I think it would be very unrealistic to
load that on to local authorities. I think it should be a continuing
liability possibly for Natural England.
Q350 David Lepper: So a clear definition
is needed of local authority responsibility, if that is what it
is to be, or, as I think Mr Graham suggested, a continuing commitment
from Defra and Natural England that they will, through a process
of reimbursement, through the local authority perhaps, ensure
the continuing maintenance?
Mr Willmington: It would have
to come from somewhere because it will be an additional burden.
There are annual maintenance processes for public rights of way—seasonal
vegetation cutting, for instance—which will need to be undertaken,
otherwise the route will become less easy for people to use.
Q351 David Lepper: Would it be too
much of an exaggeration to say that, unless this is clarified,
you could see a situation where, beyond the ten years, paths start
to fall into disuse because of the lack of maintenance and the
historic heritage that we the heard the Ramblers' Association
talking about earlier does not become part of our heritage at
all but a ten-year diversion?
Mr Willmington: I think it would
be not a particularly good investment if we were to let it degrade
that quickly. I do think that local authorities generally are
going to have other pressures and, if this were to take a low
priority, that would be a shame, because I think it can provide
additional benefits to local economies, to the health agenda,
and so on. There are so many benefits that this could bring. I
think it would be a great shame and it would be important for
this to be clarified early.
Q352 Dan Rogerson: I am interested
to hear what you say about liability, but there was one question
that struck me, which may have been more appropriate to Mr Bennett-Lloyd,
had he be been able to join us. It is about the issues of where
the coastline is changing and whether or not the sorts of things
with regard to maintenance are not just about patching things
up and cutting back vegetation but maybe having to go through
a separate process to reconfigure the route; all those sorts of
things. It is more of a problem in the east, presumably, than
the west, but is that something you have had to contend with in
Devon?
Mr Jenkins: We have had to deal
with it. A couple of years ago we had a fairly significant slippage
where we lost a significant section of the coast path. We had
a co-operative landowner. It took a year to conclude those negotiations,
and we brought a strip of land on which we could realign the coast
path and, I think, within a week or two of actually concluding
that, we had lost that extra piece of land. The situation is far
worse in Dorset, where I think in 2001 they had a major slip and,
effectively, lost three miles of coast path. It took four years,
I think, to reinstate the first section. As we did, they took
geological advice saying, "How much land do we need to acquire
to allow 20 or 30 years further slippages?" They were able
to re-establish one mile of that and, within two years, having
supposedly bought enough land to last 30 years, that had all disappeared
as well. So the provisions for rolling back the coastline would
be a very positive move.
Mr Willmington: But it would be
all right because you have to re-establish the route on that rolled-back
length as well, so there are additional on-going capital costs
in terms of the establishment of the trail.
Q353 Dan Rogerson: So the costs we
are talking about here would not take account of that at all.
Mr Willmington: I do not think
I am in a position to comment, I do not know how the £50
million was put together, but our experience is that these things
often cost far more than they are originally thought to cost at
the outset.
Q354 Chairman: Can we move on to
the question of liability, particularly in the context of members
of the public who might be injured or have an accident whilst
using the newly opened up coastal paths. Are you satisfied, particularly
from local authorities, who I know have to be very conscious of
public safety—you have to be risk-averse, you have to carry
out risk assessments—that in fact the Bill deals adequately
with the question of responsibility in terms of the landowner
as well as the user of the pathway?
Mr Jenkins: The proposals claim
to relieve Natural England of their liability. I think we would
like to see that extended to highway authorities as well, because,
obviously, I suspect that it will be the highways authorities
or access authorities who will be undertaking works, in practice,
on such routes, so no liability is important for access authorities.
Mr Willmington: Excuse my lack
of clarity, but these sections of the trail established under
the Marine Bill would not be highway as so defined, and, therefore,
as a highway authority I do not think that local authorities would
necessarily see that the liability would extend to them or would
wish it to, particularly if you had no wherewithal to make sure
that you could assure the ongoing safety of the travelling public
at all times.
Q355 Chairman: I suppose what was
also at the back of my mind was that, for example, county councils
are going to have to have some idea of how safe these paths are.
For example, if schools wanted to walk the coastal path, the school
would have to fill in the necessary risk assessment forms before
they were given, effectively, "permission" by the county
authority that it was a safe place to go. Do you envisage that
you will have to make some kind of formal safety assessment if,
for example, in the case of Devon or Cumbria, their schools wanted
to use these new facilities?
Mr Willmington: It certainly would
be the school's responsibility to undertake that risk assessment.
From a highway authority's perspective, we would seek to discharge
our responsibilities in terms of those parts of the coast path
that are a highway by a regular inspection regime to ensure that
it was of adequate standard for the general public to use, which
would include school children. I do not think that we as a highway
authority would be particularly and specifically expected to assure
the safety of school children if they are on a school trip. I
think that would be down to the individual school.
Q356 Chairman: I was trying to wrap
my mind round the question that the area of responsibility is
very much put on the shoulders of the walker, and much of the
Bill tries to take away responsibility from the landowner. In
other words: "Here is a route way. You as a walker can look
after yourself", but where there are third-party considerations,
like schools, for example, somebody has got to have a benchmark
judgment to say, "The school says it is safe, but do we think
it is safe?" because a county education authority would ultimately
have to say it is okay to go and use it.
Mr Jenkins: I think for the existing
case we have to assume that the public take responsibility for
their own safety. There is nothing to stop any member of the public
walking to the cliff edge and then falling over, we have to assume
that they will use commonsense, and that would apply equally with
the proposals.
Mr Graham: As far as children
are concerned, I think that is an extra consideration. What we
have discussed in Cumbria is local schools and the local ranger
getting together and assessing which paths are better for children
than others within that broader liability that goes with whoever
goes and walks on coastal paths.
Q357 Chairman: We have heard a lot
about the fact that on this occasion there is not going to be
a formal mapping exercise, as there was under the original Countryside
Rights of Way Act, and that there will be a great deal of emphasis
put on signage to help people to know (a) where to go and (b)
what the extent of the spreading room is. From your standpoint,
do you think that that approach is going to be adequate to make
certain that people will know where they can go and where they
cannot go?
Mr Jenkins: I think on a coastal
route there is not a problem—it is pretty obvious you keep
the sea to one side—so I think the public will know what
the actual route is. On my reading of the outline scheme, the
spreading room will be to existing boundaries. It largely reflects
the situation that we have at the moment and we do not have any
significant problems with the public wandering off the line of
the path.
Q358 Chairman: I want to move on
to a couple of specific areas: firstly, estuaries, where particularly
Devon may have some experiences. You may have heard our earlier
discussions—I think you did—in terms of where the
point of crossing should be and how should the pathway deal with
access to estuary areas. From the Devon standpoint, do you have
a view as to whether the Bill has got this bit right or whether
there should be some changes?
Mr Jenkins: We have given two
examples. We think the suitability of the crossing is an important
issue. I mentioned earlier, there are two ferries that are subsidised
as part of the coast path. That subsidy only operates from Easter
until September each year and for a very limited number of hours
a day—two hours in the morning and one hour in the afternoon—and
so there are substantial periods where it is not possible to actually
walk the coast path. I think we would like to see that situation
improved. It is difficult. Of the two estuaries which we quoted
in our submission, the first crossing point of one is a ferry,
but if you disregard the ferry—the alternative route involves
something like a six-mile detour inland along existing rights
of way. The other crossing that we have quoted is another six-mile
detour along minor county roads. There are private tracks which
could be used, but obviously that would have a significant impact
on the landowner if they were to be included as part of the coastal
route.
Mr Willmington: It is an issue
of continuity in terms of people being on the coast path and then
not, they then have to find their way back to the coast path on
the other side of the estuary. We are still stressing that people
have to take responsibility for their own safety, and that goes
for direction as well, one assumes, but you are probably experiencing
a different understanding between the two routes.
Q359 Chairman: Mr Graham, is there
anything from the Cumbrian standpoint?
Mr Graham: Yes, it is going to
present enormous difficulties to Cumbria because a lot of the
estuaries are both remote and very deep inland; you could walk
for days. So I cannot suggest anything that is better than the
kind of definition from Natural England, but it is going to cause
great problems and may very well, short of building new foot bridges
across, lead to quite a truncated experience in places in like
Cumbria. Geography does impose its own limitations.
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