Memorandum submitted by the Department
for Environment, Food and Rural Affairs (DMB 72)
DEFRA RESPONSE TO COMMITTEE'S WRITTEN QUESTIONS
1. Natural England's scheme will specify the
approach it will take regarding coastal access provision, for
both the long-distance route and the "spreading room".
Why has the Government decided that the scheme will not be subject
to any form of Parliamentary approval?
As the Committee notes, under clause 274(7)
of the draft Marine Bill the effect of an approved scheme is that
Natural England must act in accordance with the scheme in discharging
its coastal access duty. If a scheme prepared by Natural England
is not approved, it has no effect, because clause 274(8) provides
that Natural England may not prepare or submit proposals under
section 51 or 55 of the 1949 Act until such time as there is an
approved scheme under clause 274. What gives a scheme effect is
therefore its approval by the Secretary of State under clause
274(2).
As the Committee's question implies, one option
is for the Bill to provide for the scheme to be confirmed by an
order made by the Secretary of State and subject to the negative
or affirmative Parliamentary procedure. The Government has not
adopted that option in the draft Bill for the following reasons.
The nature of a scheme under clause 274, as
conceived by the Government and Natural England, is that it is
a document which sets out the general approach that Natural England
proposes should govern the determination of the English coastal
route for the purposes of any proposals to be made by it under
section 51 pursuant to the coastal access duty, and for the purposes
of the exercise of the powers conferred on Natural England by
new section 55A(4)-(6) and new section 55B(2) of the 1949 Act
and by Chapter 2 of Part 1 of the CROW Act (referred to in new
section 55B(3) of the 1949 Act).
It is therefore a document of some generality,
setting out a broad and strategic policy approach to the positioning
of the route, and (to some degree) the exercise of the discretions
mentioned above, in the context of certain types of topography
or land use. Its nature as a framework policy statement is not
such that it would be appropriate to construe it in any very precise
manner. The Committee can come to its own view on this point by
reading the outline scheme which Natural England has published
as a contribution to pre-legislative scrutiny.
It is also a document which operates at a very
preliminary stage. The document which determines how the provisions
of the Act apply in a particular context is not the scheme but
the relevant report prepared under section 51 of the 1949 Act.
It is only with this report that the nature and implications of
Natural England's proposals are translated into the terms of specific
local topography and become apparent. Part 9 of the Bill, which
adopts the mechanisms of the 1949 Act, envisages that section
52 will operate as it does at present, with approval being given
by the Secretary of State.
For these reasons the Government considered
that, whilst it was appropriate that the scheme should be subject
to the approval of the Secretary of State, it was not appropriate
that it should be confirmed by means of a statutory instrument
subject to Parliamentary procedure. The Government considers that
this would confer a degree of formality, and attach a degree of
weight to the precise language used in the scheme, that is inappropriate
to the conception of the document as a framework plan.
Consistently with the proposed nature of the
scheme, it is envisaged that the scheme should be capable of revision
under clause 274(4) (subject to consultation and to approval and
publication of the revised scheme under clause 274(4)-(6)) in
a manner which is flexible and procedurally "light touch".
We have based the provisions in clause 274 requiring
Natural England to draw up a coastal access scheme on a similar
duty in section 33 of the Countryside and Rights of Way Act 2000
which requires Natural England to issue guidance on exclusions
and restrictions of access on open country and registered common
land. Whereas section 33 of that Act only requires the Secretary
of State to approve the guidance before Natural England arranges
for it to be published in such a manner as its considers appropriate,
clause 274(4) goes further than this in that it requires Natural
England, before preparing or revising a scheme, to consult on
the scheme with such persons as it considers appropriate before
seeking the Secretary of State's approval.
A first full draft of the scheme will be published
when the Bill is introduced into Parliament. Natural England will
then continue to develop the scheme as the Bill progresses through
Parliament. Following the enactment of the Bill and the commencement
of Part 9 (see clause 300(2)), there will (as required by clause
274(5)) be an opportunity for further discussion of the content
of the scheme before the final version is sent to the Secretary
of State for approval under clause 274(1)(b).
2. Is it intended that the Secretary of State
will have discretion as to how coastal land is designated, or
will he or she only be able to designate by reference to approved
proposals by Natural England?
New section 3A of the CROW Act (to be inserted
by clause 278(5) of the Marine Bill) enables the Secretary of
State by order to specify the descriptions of land in England
which are coastal margin for the purposes of Part 1 of the CROW
Act.
This power is expressed in general terms. But,
as the Committee notes, one way in which it may be exercised is
by means of a description expressed by reference to the English
coastal route (as set out in proposals approved by the Secretary
of State under section 52 of the 1949 Act). The terms of the power
in new section 3A make this plain.
New section 3A (2) sets out particular examples
of what an order under new section 3A may provide. The order may
in particular (paragraph (a)) describe land by reference to its
being (i) land over which the line of the English coastal route
passes, (ii) land which is adjacent to and within a specified
distance of that line, and (iii) land which is adjacent to that
land, if all the land in (i) to (iii) taken together is coastal
land. For this purpose, "coastal land" is defined as
having the same meaning as in section 3 of CROW. It means the
foreshore and land adjacent to the foreshore (including in particular
any cliff, bank, barrier, dune, beach or flat which is adjacent
to the foreshore).
Paragraphs (b) to (e) of subsection (2) provide
that, in relation to particular cases, the order may describe
land as coastal margin in particular ways. These are cases where
land may be described by reference to the English coastal route
as it has effect from time to time or by reference to a temporary
route, and cases where the boundary of land described by reference
to the English coastal route or an alternative route is to coincide
with a physical feature.
The coastal access duty under clause 272 requires
the Secretary of State and Natural England to exercise their "relevant
functions" in order to secure the two objectives of providing
a long-distance route and a margin of land for open-air recreation.
For this purpose, "relevant functions" in relation to
the Secretary of State are those under Part 9 of the Marine Bill,
those under Part 4 of the 1949 Act and those under Part 1 of the
CROW Act, as well as such of his other functions as the Secretary
of State considers appropriate for the purpose of securing the
objectives under the Bill.
It follows that the Secretary of State must
exercise his functions under the 1949 Act in relation to the approval
of proposals for long-distance routes, so far as they are approved
pursuant to the coastal access duty, for the purposes of achieving
the two objectives set out in clause 272(2). These objectives
are moreover linked: the margin which is to be available for public
access is to exist "in association with" the English
coastal route.
The examples given in subsection (2) of new
section 3A do not, however, curtail the generality of the power
in subsection (1), as indicated by the words "in particular".
An order may specify a description of land which is coastal margin
in ways other than those set out in subsection (2). Thus, for
example, an order may specify as coastal land particular types
of land, such as any cliff, bank, barrier, dune, beach or flat
which is adjacent to the foreshore. It is in fact envisaged the
proposed order will do so.
It is not, however, proposed that the order
would specify as coastal margin descriptions of land in any manner
other than those indicated above.
3. How confident are you that the potential
for loss of privacy of some landowners is legally compatible with
the First Protocol to the European Convention on Human Rights
and the Human Rights Act?
Article 1 of the First Protocol is concerned
with the protection of property rights and provides the following:
"Every natural and legal person is entitled
to the peaceful enjoyment of their possessions. No-one is to be
deprived of those possessions except in the public interest and
subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as
it deems necessary to control the use of property in accordance
with the general interest..."
The Government considers that the provisions
of Part 9 of the Bill and their implementation would amount to
a "control of the use" of the landowner's property rather
than expropriation or deprivation of it. No provision is made
for the transfer of ownership of the land. Case law establishes
that, where there is no actual loss of property and the landowner
is still able to use, develop, let or sell the property, there
is no deprivation and the actions of the State amount to control
of the use of that property.
In order to comply with Article 1 of Protocol
1, a fair balance must be struck between the interests of the
general public and the interests of individual landowners. Generally,
in cases involving a control of use as distinct from a deprivation
of property, compensation is not required in order to ensure that
a fair balance is struck. Where the interference is a control
of use, it is only in rare and extreme cases that compensation
may be necessary.[1]
The proposals in Part 9 of the Bill do not fall into that category.
The requirement to strike this balance has been
enshrined in this legislation (in clause 273) which requires Natural
England and the Secretary of State, in discharging their coastal
access duty, to "aim to strike a fair balance between the
interests of the public in having rights of access over land and
the interests of any person with a relevant interest in the land".
The effect of the State's action on the privacy
of landowners is one of the considerations which is relevant in
deciding whether or not such a fair balance has been struck.[2]
When Natural England is deciding where to position
the route, and when the Secretary of State is considering its
proposals, the privacy of affected landowners will be a very important
element of the considerations taken into account. Natural England
will therefore, in consultation with landowners, seek to avoid
any serious intrusions into the privacy of landowners. Where landowners
wish to object to Natural England's proposals, they will be able
to make representations about them to the Secretary of State,
who will be under a duty to consider those representations, and
who has power under section 52(1) of the 1949 Act to propose modifications
to the route should he consider that privacy has been adversely
affected.
The privacy of landowners is also protected
by the provision in section 1(1) of the CROW Act excluding certain
categories of "excepted land" (set out in Schedule 1
to the Act) from the definition of "access land" (land
to which the right of access under section 2(1) applies). An order
under new section 3A of the CROW Act may make modifications to
the provisions of Schedule 1, including by adding further categories
of excepted land (see new section 3A(4)). It is envisaged that
the categories of excepted land in relation to coastal margin
will, as in relation to "open country" include land
used as a park or garden, and the curtilage of buildings. These
categories of excepted land will go a long way towards protecting
the privacy of landowners and ensuring that a fair balance has
been struck between their rights and the interest of the general
public.
By virtue of section 6 of the Human Rights Act
1998, the legislation must also be compliant with Article 8 of
the European Convention of Human Rights, which speaks more directly
about privacy than does Article 1 of the First Protocol.
This Article provides the following:
"(1) Everyone has the right to respect
for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection
of the rights and freedoms of others.".
This Article seeks to protect both the privacy
and the homes of landowners. Although (so far as we are aware)
there has not been a case in which a garden or parkland has been
held to be included within the term "home", the proposed
exclusion of the right of access in relation to these two categories
of land will provide protection for the privacy of landowners.
Case law on Article 8 requires a fair balance
to be struck between the general interest and the interest of
individuals. This has been secured by the express duty in clause
273(3), and in practice will be achieved in the ways outlined
above in connection with Article 1 of the First Protocol.
4. What factors have you considered in assessing
that the proposals in the Bill strike a fair balance between the
public interest and individuals' rights?
The Government's central policy objective is
to improve public access to and enjoyment of the English coastline
so that the public has the right to walk uninterrupted along the
English coast, and in addition improve or create public access
to all land which comprises coastal margin (other than certain
categories of excepted land), including the foreshore, beaches,
cliffs, rocks, and dunes.
Clause 272 of the draft Bill imposes a duty
on the Secretary of State and Natural England to exercise their
relevant functions to secure the objectives set out in clause
272(2) and (3), and clause 273 sets out the considerations to
which the Secretary of State and Natural England, in carrying
out this duty, are required to have regard. In relation to Natural
England, these functions include its functions under Part 4 of
the 1949 Act. Accordingly, once the duty is imposed upon Natural
England, Natural England will be required to submit a series of
reports to the Secretary of State, each proposing a long-distance
route along a particular stretch of the English coastline.
In determining the route, it must consider (a)
the safety and convenience of those using the coastal route and
(b) the desirability of that route adhering to the periphery of
the coast and providing views of the sea (clauses 273(2)(a) and
(b)).
But the requirement in clause 273(3) means that
the public interest in the positioning of the route (informed
by these considerations), and in the exercise of Natural England's
powers under new section 55A(4)-(6) and new section 55B(2) of
the 1949 Act, must be weighed against the interests of affected
landowners. Natural England must aim to strike a fair balance
between the interests of the public in having rights of access
over land and the interests of any owner or occupier of land affected
by the conferral of the new right of access.
By virtue of section 6 of the Human Rights Act
1998, Part 9 must itself strike a similar fair balance. The Government
considers that the provisions in Part 9 do so. We recognise that
appropriate account must be taken of individuals' rights of privacy
and that the right of access needs to be excluded in relation
to certain categories of "excepted land" (land to which
the right of access does not apply) as specified in Schedule 1
to the CROW Act. Among the categories which the Government considers
should continue to be excepted land are land used as a park or
garden, and land covered by buildings or the curtilage of such
land.
Before preparing a report to the Secretary of
State under section 51 of the 1949 Act pursuant to its coastal
access duty, Natural England must consult owners and occupiers,
local authorities, local access forums (as defined in Part 5 of
the CROW Act), the Secretary of State (in relation to defence
and national security), the Historic Buildings and Monuments Commission
and the Environment Agency (new section 55B). In addition the
draft Bill includes provision for Natural England to invite representations
in relation to the report that is sent to the Secretary of State
(new section 55C), and a requirement for the Secretary of State,
before approving any proposals, to consider any representations
made to Natural England.
The draft Bill has been drawn up so that implementation
of the new right will take account of the interests of landowners
and minimise any impact on businesses. We consider that the mechanisms
set out in the draft Bill will ensure that the interests of the
public and those of landowners are considered equally, in particular
the provision for the Secretary of State to approve the proposals,
and before doing so to consider any representations made to Natural
England by landowners and not withdrawn. Judicial review of the
Secretary of State's decision will be available on the usual grounds.
A key element will be the requirement for Natural England to consult
landowners before making proposals as to the most appropriate
position for the coastal route and as to any necessary restrictions
or exclusions of access, for example for reasons of land management
or nature conservation.
Clause 274 requires Natural England to produce
and submit for the approval of the Secretary of State a scheme
setting out its proposed approach in discharging its coastal access
duty. Before preparing a scheme, Natural England must consult
such persons as it considers appropriate. Natural England has
already sought views on the proposed scheme from key stakeholders
and these have been reflected in the outline of scheme which it
has published.
Natural England's careful consideration of its
proposals under section 51 of the 1949 Act, which will be undertaken
in accordance with the statutory scheme, and in discussion with
local interests, will ensure that its report to the Secretary
of State takes account as far as possible of any impacts that
the route and margin will have in relation to coastal land cover
and landforms (eg beaches and cliffs) and in relation to coastal
land uses (eg use for industry, crops, livestock, or caravan and
camping sites).
A first full draft of the scheme will be published
when the Bill is introduced into Parliament. Natural England will
then continue to develop the scheme as the Bill progresses through
Parliament. Following the enactment of the Bill and the commencement
of Part 9 (see clause 300(2)), there will (as required by clause
274(5)) be an opportunity for further discussion of the content
of the scheme before the final version is sent to the Secretary
of State for approval under clause 274(1)(b).
5. What are the envisaged "specified
circumstances" in which an exclusion or restriction originally
made under the CROW Act would be "reviewed" and effectively
overturned?
Why have the criteria for these circumstances
and the mechanism for interested persons to make representations
and have them given due weight not been included in the primary
legislation?
Certain land (moor, heath or down) along the
coast is already mapped as open country or registered common land
and therefore is already "access land" under section
1 of the CROW Act. To the extent that such land is included within
the coastal margin by virtue of an order under new section 3A
of the CROW Act and proposals approved under section 52 of the
1949 Act, the land will be subject to the same regime as other
land which is coastal margin.
Where such land has been subject to a restriction
or exclusion under Chapter 2 of Part 1 of CROW, the restriction
or exclusion will generally cease to have effect at the end of
the access preparation period, by virtue of new section 3A(7)
of the CROW Act. The access preparation period is the period which
begins when the land becomes coastal margin by virtue of the section
3A order, and ends with the day appointed by the Secretary of
State by order (see new section 3A(10)). This general termination
of existing restrictions and exclusions is subject to two exceptions
(new section 3A (8) and (9))—those resulting from a direction
which takes effect after the end of the access preparation period,
and those relating to land which is already dedicated as coastal
margin under section 16 of the CROW Act.
Natural England is required by new section 55B(3)
of the 1949 Act to set out in its report under section 51 of that
Act its proposals for directions to be made by it under Chapter
2 of Part 1 of the CROW Act for the exclusion or restriction of
access. Any such proposed directions would be expressed to take
effect after the end of the access preparation period (and so
would not be subject to new section 3A(7) of the CROW Act). The
proposed directions set out in the report may include directions
which reproduce (with or without modifications) restrictions or
exclusions which currently apply to the land and were made by
direction under section 24, 25, 26 or 28 of the CROW Act, but
which will cease to apply to the land, if the report is approved,
as from the appointed day.
The effect of this is that existing directions
may be replicated so that the existing restriction or exclusion
continues to apply; but Natural England is able to review in relation
to each existing direction whether this is the appropriate result
and reflect its conclusions in the proposals under section 51.
Existing restrictions under section 22 or 23
of the CROW Act will not be capable of being replicated by new
restrictions under section 22 or 23, but their effect will be
capable of being replicated by a restriction under section 24
(restrictions for the purpose of land management).
Before preparing its report, Natural England
is required by new section 55B(4)(a) of the 1949 Act to take reasonable
steps to consult the owner of the land and any other person with
a relevant interest in the land (as defined in new section 55H(2)
of the 1949 Act).
Where Natural England's report does not include
a proposal for a direction replicating an existing restriction
or exclusion, the owner of the land, and any other person with
a relevant interest in the land (as defined) will have an opportunity
to make representations to Natural England, by virtue of provision
in regulations made under new section 55C(2)(c) of the 1949 Act.
Natural England must then consider those representations and send
a copy of them, together with its comments on them, to the Secretary
of State, who must consider them before making a determination
under section 52 (new section 55C(4) and (6)).
In this way, each existing restriction or exclusion
can be considered individually on its merits. The appropriateness
of continuing the restriction or exclusion in relation to land
which is coastal margin will depend on the particular circumstances.
For example, existing restrictions excluding persons with dogs
may not be appropriate in the light of the general restriction
proposed to be introduced into Schedule 2 to the CROW Act (by
means of a modification made by the section 3A order) requiring
dogs to be kept under close control.
New section 3A(5)(c) of the CROW Act provides
that a section 3A order may provide that no appeal may be made
under section 30 against decisions relating to land which is coastal
margin, and provide for the review of decisions under Chapter
2 in specified circumstances, and the making of representations
in connection with such reviews.
It follows from what is said above that any
provision made under new section 3A(5)(c) will only be of relevance
in relation to new applications for a restriction or exclusion,
that is, applications which are made after the approval of the
relevant report under section 52 of the 1949 Act. The proposed
review mechanism provided under the section 3A order will therefore
not apply in relation to existing restrictions and exclusions.
These will already have been reviewed by means of the mechanisms
introduced by new sections 55B(3)-(4) and 55C(4)-(6).
The Government considers that it is appropriate
for provision requiring the review of decisions relating to new
applications for restrictions and exclusions, and setting out
the mechanism for this review, to be made by means of a section
3A order. New section 3A(4) would enable the order to modify the
provisions of Part 1 of CROW in their application to land which
is coastal margin. This mirrors the power contained in existing
section 3(2)(b). The section 3A order will be subject to the affirmative
procedure.
The review mechanism will replace the section
30 appeals procedure by a lighter procedure that will give people
the opportunity to make representations. The Government considers
this to be compliant with Article 6 of the European Convention
of Human Rights.
6. Why have you chosen to add provisions to
Part IV of the 1949 Act? What are the reasons for not including
the capacity of Natural England to submit proposals on the coastal
access route and spreading room in the appropriate part of the
CROW Act, specifically with the new section 3A order-making power
of the Secretary of State?
Part 4 of the 1949 Act and Part 1 of the CROW
Act have different objectives. The 1949 Act is concerned with
the establishment of long-distance routes for the purpose of enabling
the public to make extensive journeys on foot (a linear conception);
the CROW Act with the conferral or a right of access for open-air
recreation in relation to areas of land (a spatial conception).
Part 9 of the Bill reflects both these objectives,
and sets them out in clause 272(2) and (3). The intention is both
(a) to establish a long-distance route for the whole of the English
coast ("the English coastal route") which affords the
possibility of extensive journeys on foot and (b) to secure for
public enjoyment for the purposes of open-air recreation a margin
of land that is defined in part by reference to certain coastal
land types and in part by reference to the line of the route.
It therefore employs both types of approach (delineation of the
line of a route and delineation of a space), and combines them.
Both elements are integral to the policy conception.
Neither is sufficient on its own. The long-distance route approach
does not provide access to an area of land (and indeed Part 4
of the 1949 Act does not itself provide access rights at all).
Equally, the designation of certain areas for recreational access
(as under the CROW Act) not only does not sufficiently accommodate
the concept of a route affording a continuous and extensive journey,
but also does not take account of the detailed local geography
along the coast, because it relies on the designation of certain
generic types of land for the purpose of determining the land
to which the access right applies.
So both conceptions are needed; but the novel,
and crucial, element that the conjunction of the two produces
is the conferral of a controlled degree of flexibility in the
determination of the land to which the right of access applies.
This is achieved by provision enabling the positioning of a long-distance
route to have the consequential effect of determining the coastal
land adjacent to the route (between the route and the foreshore)
to which the right of access applies.
An order under section 3 (as distinct from new
section 3A) of the CROW Act would require the coastal land to
which (subject to certain exceptions) the right of access applies
to be determined by reference to general descriptions of types
of land specified in the order. By contrast, new section 3A enables
an order under that section to combine the approach set out in
section 3 (specifying general descriptions of land by type) with
a new approach which allows the inland boundary of the coastal
margin to be determined in a way which responds flexibly to the
particular topography and land use, so that the depth of the coastal
margin may vary from place to place[3].
Definition of the area of coastal margin by
reference to the adjacency of land to the line of a long-distance
route established under the 1949 Act also enables this area to
be determined in a very simple manner from the line of the route,
which will be signed on the ground and a map of which is required
to be contained in the report submitted under section 51(2) of
the 1949 Act. The mechanism for the preparation of maps (under
section 4 of the CROW Act), which is necessary in relation to
open country and registered common land, is not therefore needed
in relation to coastal margin.
Whilst the power in new section 3A therefore
enables the achievement of an essential, but constrained, flexibility
in delineating the extent of land which is coastal margin, we
have not thought it appropriate that the power to determine the
English coastal route should be contained in provisions in the
CROW Act. This is for three reasons.
First, use of the CROW Act to establish a long-distance
route would confuse the clear purpose of that Act, which is rather
to confer a right of public access to areas of land. The establishment
of long-distance routes is not an objective of the CROW Act, but
rather an objective of the 1949 Act.
Second, it would result in two regimes each
of which related to the establishment of long-distance routes—in
the case of the CROW Act, only in the context of coastal land;
and in the case of the 1949 Act, more generally, including in
the context of coastal land. This would be unnecessarily complex
and confusing.
Third, it would result in considerable duplication
of statutory provisions, since it would entail importing into
the CROW Act the procedures set out in sections 51-52 and 55 of
the 1949 Act. This would be uneconomical, being replication which
served no necessary or useful purpose.
It therefore seemed to the Department that,
in so far as supplementary provision relating to the establishment
of a long-distance route was needed in the context of the English
coastal route, this could most appropriately be contained in the
1949 Act, building on the existing provision in that Act concerned
with long-distance routes, which was ready-made and appeared ideally
suited to the current purpose; and, by the same token, in so far
as supplementary provision relating to the right of access was
required, it was most appropriately contained in the CROW Act.
The consequence of linking two distinct regimes
is that some cross-reference is inevitable. But signposts of this
nature serve to indicate the legislative structure. To place provisions
providing for the establishment a long-distance route within Part
1 of the CROW Act would instead have confused the logic of that
legislative structure.
7. How confident are you that the route would
be well maintained in the future, especially in light of the fact
that Natural England will be provided with no additional money
to maintain it?
Natural England will be responsible for identification
of the route and associated margin and for implementation of any
necessary works, such as installation of gates or bridges. Natural
England and access authorities will have powers to enter into
agreements with landowners to carry out any necessary works or
to carry out the works themselves if necessary. Natural England
will also have power to erect signs related to the route, for
example to make the route clear to users or to advise on exclusions,
restrictions or hazards. The draft Bill includes provisions giving
Natural England and access authorities a power to meet or contribute
to costs of maintenance of the route.
Natural England will fund implementation of
the route and has estimated that implementation will take 10 years.
Natural England has estimated that it will cost £5 million
per year over a 10 year period. The total figure of £50 million
includes an element for maintenance of the route as stretches
are implemented. From year 11 onwards Natural England will continue
to contribute to maintenance on a basis yet to be agreed.
We have published an Impact Assessment on the
proposals to improve coastal access provisions. The figures in
the Impact Assessment provide for the costs of maintenance of
infrastructure, on both new and existing access, over a 20 year
period.
Can you be sure that the Draft Bill would create
an access route that would remain open to the public?
Clause 280(3)(c) of the draft Bill enables Natural
England or the access authority to make an agreement with the
owner or occupier to remove an obstruction on the route. Clause
281 enables works to be carried out if no such agreement can be
reached. We consider that these powers will be enough to ensure
that the access route will remain open. Where the route follows
an existing right of way, the Highways Act 1980 already places
a duty on a highway authority to seek, prevent and remove an obstruction.
The 1980 Act also makes it an offence to obstruct a highway.
Defra
June 2008
1 For a rare example of a case involving a control
of use where compensation was required, see Housing Association
of War Disabled and Victims of War of Attica and others v, Greece
(Application No. 35859/02), 13 July 2006, where the applicants
were debarred from building on their land, since it was protected
as forest land. Back
2
See, for example, two cases involving the construction of a motorway
very close to the applicant's house, where there was also a substantial
depreciation of the value of the property: Ouzounoglu v. Greece
(Application No. 32730/03), 24 November 2005, and Bistrovic v.
Croatia (Application No. 25774/05), 31 May 2007. These were
cases of partial expropriation. Back
3
This flexibility is controlled by certain safeguards. Some of
these are substantive: the requirement in clause 274 (7) for Natural
England to act in accordance with the approved scheme; the requirement
in clause 273(2)(b) to have regard to the desirability of the
route adhering to the periphery of the coast, and the requirement
in clause 273(3) to aim to strike a fair balance between the interests
of the public and the interests of affected owners of land. Others
are procedural: the provision for consultation under section 51(4)
and new section 55B(4) of the 1949 Act before preparing a report
under section 51 pursuant to the coastal access duty; the requirement
in new section 55C(4) for Natural England to consider representations
made in relation to draft proposals in accordance with regulations
made under new section 55C(2)(c), and to send a copy of those
representations, with its comments on them to the Secretary of
State; the requirement for the approval of the report by the Secretary
of State under section 52 of the 1949 Act; and the requirement
in new section 55C(6) that, before making a determination under
section 52, the Secretary of State must consider any representations
and comments received in relation to the report by the consultees
mentioned in new section 55C(2)(c) and any report submitted by
Natural England summarising any other representations received
by it. Back
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