Examination of Witnesses (Questions 400-419)
JONATHAN SHAW
MP, MS HELOISE
TIERNEY AND
MS ANN
BENNETT
18 JUNE 2008
Q400 Chairman: As you have worked
up your ideas into the draft Bill, given the enthusiasm of the
Government to deliver on this policy, you obviously want to make
certain that the right amount of resources are there to actually
make it happen over this decade-long period, yet you will also
be aware, because I am sure people have told you, that there are
others with experience of doing this for real who are sceptical
that the amount of resource that is there, £5 million a year,
is sufficient to get this project under way. I was interested:
you must have asked the question "X, Y and Z have said they
are sceptical; are Natural England right with this number?"
If they are right, give me some convincing reasons why they are
right.
Jonathan Shaw: I have had discussions
and I am aware that the local authorities felt that there should
be additional sums. That did not surprise me; local authorities
are always wanting additional sums.
Q401 Chairman: Devon, when they came
here, did not ask for extra money; what they were saying was,
"From our experience for doing it for real, we do not think
there is enough money in the pot."
Jonathan Shaw: I am satisfied,
Chairman, from the presentations I have had, the questions that
I have put to my officials and the discussions that they have
had, and the analysis, and the consultants have worked out this
sum of money, and Natural England have this £50 million and
that will deliver the project.
Q402 Chairman: It costs £35,000
a mile to do this. What is the biggest single item of expenditure
per mile?
Ms Tierney: I do not have that
detail at the tip of my fingers, Chairman. Natural England are
the agents who are being commissioned to undertake this piece
of work for the Government. If you want a breakdown of how much
things cost, then we will happily provide that for you.
Q403 Chairman: I was just interested
to know what you get for £35,000 a mile.
Jonathan Shaw: It would be surprising
if I could remember exact figures such as that, the detail of
particular pieces of fence, Chairman. I thought we were talking
broadly about the policy.
Chairman: We might come back to this.
Miss McIntosh wants to give some helpful information.
Q404 Miss McIntosh: I am trying to
help you here.
Jonathan Shaw: I am very comfortable
with the £50 million, and if you feel I need help, ask your
question and I will gratefully receive it.
Q405 Miss McIntosh: You are asking
the Committee and Parliament to give you, or to give Natural England,
carte blanche with various provisions of this Bill. Why
should we be convinced that Natural England should be given these
discretionary powers? Parliament should have the opportunity,
surely, to actually analyse the various aspects, to see that there
is no conflict of interest between the various powers that Natural
England are given and to say, to help you, that we believe they
do have the adequate budget.
Jonathan Shaw: We give Natural
England, as our conservation agents, a lot of powers. They are,
for example, the body that designate SSSIs, they run our Areas
of Outstanding Natural Beauty, they make decisions about our natural
environment and have that power every single day. That is the
nature of the agency.
Q406 Miss McIntosh: Do you not think
it is valid that agencies—you referred to the Rural Payments
Agency. We will not go there.
Jonathan Shaw: They are doing
very, very well.
Q407 Miss McIntosh: They are doing
better. Do you not think it is incumbent on any government to
allow Parliament to have its say, to analyse and to scrutinise
both the powers and the budget and this draft Bill? In my experience,
there are far more discretionary powers here than we even saw
in CROW.
Jonathan Shaw: Chairman, we will
provide the Committee with detailed costings, if that will help,
but in terms of Parliament and scrutinising, that is what this
is about. It is a draft Bill.
Chairman: What I want to know is what
gives you comfort that £50 million over ten years will do
the job. What particularly did you look at in terms of comparator—because
obviously you have talked to other people who have done it for
real—that made you think this was the right sum of money?
I want to know when you got the submission on and they said, "Minister,
this is what we are recommending, this is the policy." There
is a bit where it says "costs" and you read that and
thought, "Yes, £50 million will do. We can be confident
that this policy is deliverable," because the background
we have had is that a lot of people have said there is not enough
money.
Q408 Mr Cox: Minister, again, I want
to ask you a very helpful question, and it is simply this. It
comes from the confidence that you clearly have been given by
your advice that compensation will be inapplicable. Clearly, the
£50 million could not include compensation if it were applicable.
Is part of your confidence—this may become relevant to your
evidence later—based on the exemption for gardens? Is part
of your confidence that compensation will be inapplicable based
upon the fact that Defra takes the view that gardens should be
exempt? Plainly, those might raise different issues where compensation
could become applicable.
Jonathan Shaw: The reason why
I decided that we would not include parks and gardens was because
it is very difficult to define a park and a garden, there are
issues about size, and I felt that would generate a great deal
of uncertainty, it would generate conflict and it would generate
legal challenge.
Q409 Mr Cox: Yes, in which compensation
may become an issue.
Jonathan Shaw: We do not believe
so.
Q410 Mr Cox: No, but if you were going
through somebody's garden, you might very well not be able to
strike a just balance without paying some form of compensation.
Jonathan Shaw: I have taken the
decision that I have because, as I say, I want to see flexibility,
I do not want people to have uncertainty, and I think that if
we had parks and gardens, that would create a huge amount of tension,
it would detract from getting on with the job, there would undoubtedly
be causes célèbres—
Q411 Mr Cox: Legal challenge.
Jonathan Shaw: Yes, there would
be legal challenge. That is the reason, but I still think that
there will be opportunities for people to enter into voluntary
arrangements, to dedicate land that is a garden. That is the basis.
Could there have been a legal challenge? It would certainly make
things very difficult and detract from the good work that I want
Natural England to get on with. Does that answer your question?
Q412 Mr Cox: I agree with the decision
that you have taken, which is why I was trying to help you. I
think the exemption of gardens is absolutely right. You would
have opened yourself up to huge legal challenge if you had decided
to include those. It is a pragmatic view taken by Defra. I am
not always the greatest applauder of Defra's actions but in this
case I do.
Jonathan Shaw: I am always happy
to help businesses, lawyers included Geoffrey, but sadly, not
on this occasion.
Q413 Sir Peter Soulsby: Can I just
follow on from that, because even without parks and gardens, the
CLA and the NFU have given us a number of circumstances in which
they would argue that landowners will be significantly disadvantaged
by having a right of way through their land, either directly or
indirectly. Just to pursue the issue of compensation, you were
implying—I think I have got it right—that you could
actually see situations where compensation might be paid in order
to get it through but you did not feel it was necessary to include
that specifically within the Bill. Am I understanding that correctly,
that you do anticipate that it may be necessary for Natural England
to pay compensation?
Jonathan Shaw: No.
Q414 Sir Peter Soulsby: But you do
not feel it is necessary in the Bill. You talk about finding a
road through and so on, in response to that. Are you saying that
in no circumstances do you anticipate compensation being paid?
Jonathan Shaw: No, I do not, because
of the duty that is within the Bill. When we sit on Bills and
there is a power, there will often be arguments, more often than
not from the Opposition, to say this should be a duty, and it
happens when governments change; that is part of it but we have
put duty in here so it is for Natural England to get that balance
of the interests between—
Q415 Mr Cox: The duty is meaningless;
it is what they are already obliged to do under the Human Rights
Act. It simply makes it explicit in a section in the Act but if
they took a decision that did not strike a just balance between
an Article 1, Protocol 1 right for the enjoyment of property,
they would be liable to challenge in the courts for breach of
the Convention on Human Rights.
Jonathan Shaw: There is a legal
process and obviously there is a process where people can make
representations to the Secretary of State.
Q416 Sir Peter Soulsby: To come back
to my point, it has been made very powerfully to us that there
are circumstances in which putting a right of way through particular
pieces of land is—
Jonathan Shaw: What are those
circumstances?
Q417 Sir Peter Soulsby: Golf courses
I seem to recall being one example that was given, but there were
certainly others as well, particular uses that will be disadvantaged.
I understand you to be saying that, regardless of the disadvantage
that would be caused, you do not anticipate compensation being
paid to the landowners concerned.
Jonathan Shaw: No, because it
is about the overwhelming public benefit and that is compatible
with human rights legislation.
Ms Bennett: Could I just add something
here? The legislation gives Natural England and the Secretary
of State a discretion to position the route in a flexible way,
also in consultation and discussion with landowners at the outset,
so they will be able to anticipate difficult situations and position
the route in a way which avoids any necessity to pay compensation.
The flexible nature of the legislation, we hope, as well as this
duty to strike a fair balance and the possibility of excepted
land, particularly sensitive land, such as the curtilage of dwellings,
will avoid any possibility that compensation might arise.
Q418 Mr Cox: It will minimise the
opportunity for it but there may be circumstances in which a particular
landowner holding a particular piece of land on the coast might
be able to argue that the mere fact that he had absolute and exclusive
enjoyment of that particular area of land and he was going to
see people walking through it may diminish the value of this property.
Then it would be a question for balancing the public purpose under
Article 1, Protocol 1 against the invasion of his property right
and it may well be that you are right, that the opportunities
for claiming compensation, given the exemptions and exceptions
that Defra has adopted, will be very few, but I do not think you
can eliminate it completely, can you? That will be a matter for
the court to decide.
Ms Bennett: If challenged, yes.
Q419 Mr Cox: It is all fact-sensitive.
Ms Bennett: It is fact-sensitive
but basically the position under the European Convention is that
unless the state is depriving somebody of his property, there
is no presumption at all for compensation. All we are doing here
is controlling the use.
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