Mr.
Benyon: Absolutely, and if the Minister had delegated
responsibility for delivering his manifesto to me, I would have been
able to provide his Government with a wonderful scheme involving local
landowners and farmers in a way that has worked in my area and around
the country. I just hope that the flexibility that he talks about will
exist, and if he can assure me that those practices will be taken into
account, I am happy to withdraw my
amendment.
Huw
Irranca-Davies: I can give the hon. Gentleman that
assurance. The argument is somewhat circuitous, because we are arguing
both for a blanket-type approach and for flexibility. I assure him that
in the consultation we anticipate removal of the standard 20 m
exemption in CROW, but we want more flexibility for landowners, farmers
and others who want to use their premises on the coast for
cafĂ(c)s, restaurants or bed and breakfasts.
We want flexibility, and input into the consultation is key to protect
their interests as well as those of people with genuine biosecurity
interests. That is where we want to make progress. With that assurance,
I hope that the hon. Gentleman will withdraw the
Bill.
Mr.
Benyon: I will not withdraw the Bill—I do not yet
have that power—but I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
290 ordered to stand part of the
Bill.
Clause
291General
provision about the coastal access
duty Mr.
Benyon: I beg to move amendment 33, in clause
291, page 187, leave out ‘aim
to’. This amendment is
designed to tighten up the duty on Natural England to strike a fair
balance between new access rights given to the general public and the
existing rights of those members of the public who own or have an
interest in land which will become the coastal
margin. This
is a simple amendment, which removes “aim to” in line 17
so that Natural England and the Secretary of State must
“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.” We
will discuss what constitutes a relevant interest in the land at a
later stage, but the amendment would tighten the duty on Natural
England to strike a fair balance between the new access rights and the
existing rights of members of the public who own or have an interest in
land that will become the coastal margin. It is important that the
Minister understand that the wording in this part of the Bill is key.
Tightening it by removing two simple words could give comfort to many
people without limiting the Bill’s aim of providing greater
access.
Ann
McKechin: The amendment, as the hon. Member for Newbury
said, sets out how the Secretary of State and Natural England must go
about fulfilling the coastal access duty, and sets out what they must
take into account. Under the provision as drafted, they must have
regard to the safety and convenience of those using the English coastal
route, the desirability of the route being close to the sea and
providing views of the sea and, as far as reasonably practicable, they
must ensure that interruptions to the route are kept to a minimum. That
is clearly stated in subsection (2). They must also aim to strike a
fair balance between the interests of the public in having rights of
access over land, and the interests of any persons with a relevant
interest in the land. That means that a balance would be struck
regarding the particular piece of land—not that the interests of
the relevant person should be set against the interests of the public
in the route and in coastal access as a whole. However, the coastal
access duty requires Natural England to propose a route, and it must
bear that in mind when trying to strike a fair balance. The body is
under a duty to consider all options for the route, between the public
interest in having the route and the interest of the landowner in
having it cross his or her land. That will necessarily involve a
balancing exercise between different landowners’
interests. It
is our intention that Natural England and the Secretary of State do
everything that is reasonably practicable to achieve a fair balance. I
cannot support the amendment, as requiring that Natural England and the
Secretary of State “aim to” strike a fair balance is a
strong inducement for them to do so, and we provide additional
protection by making the Secretary of State jointly responsible with
Natural England for making that decision, which should reassure those
with an interest in the land. If they failed to do so, a person with a
relevant interest in the land could object to the route under the
procedure set out in schedule 19. We hope that consensus can be
achieved in most cases, as my hon. Friend the Under-Secretary of State
for Environment, Food and Rural Affairs has indicated. That balance
lies at the heart of our proposals, and I believe that the correct
balance has been struck. I urge the hon. Gentleman to withdraw his
amendment on the basis of those
reassurances.
Mr.
Benyon: My amendment was sensible, in that it sought to
rebalance the fair balance, if the Minister will allow me to express a
tautology. However, I understand the points that have been made, and
hope that through this process we are able to reassure all sides in the
debate that the fair balance can be achieved. I beg to ask leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Benyon: I beg to move amendment 34, in
clause 291, page 187, line 23, at
end insert— ‘( ) owns the
sporting
rights’. To
ensure that those who own the sporting rights separate to being the
owner or occupier are included in the statutory provisions for
consultation
etc.
The
Chairman: With this it will be convenient to discuss
amendment 46, in
clause 296, page 196, leave out lines 14
and 15 and insert— ‘(a) has
a legal estate or legal interest in the land,
or’. Amendment
43, in
clause 296, page 196, line 16, at
end insert— ‘(d) owns the
sporting
rights.’.
Mr.
Benyon: The amendments seek to ensure that those who own
sporting rights, separate from being the owner or occupier of land, are
included in the statutory provisions for the consultation and in all
rights that go with that status. In the Bill, the definition of a
person with a relevant interest in affected land who would have
particular statutory rights in the consultation process, as well as in
the implementation of coastal access, covers only those who own a
freehold title or a leasehold title, or are persons in lawful
occupation of affected land. Unlike the definition in the CROW Act,
that completely neglects those with sporting rights, who have a
legitimate legal interest in
land. Sporting
rights are granted by type of lease, licence or agreement, and
constitute a separate property right. It is vital to understand that
they are capable of being owned entirely separately from the land
itself, and can be bought and sold. As a legal right, they can be
enforced against all parties, including the owner or the occupier of
land. Bizarrely, the current definition of a person with a relevant
interest in affected land gives full statutory recognition and rights
to a person with a simple permission to graze cattle, for example,
which in law is an unenforceable right entirely at the discretion of
the owner or occupier of the land, while owners of sporting rights have
been excluded, despite sporting rights constituting in some cases a
valuable property right that can be enforced against all parties,
including the owner-occupier of land. If the coastal path, and in
particular the additional spreading room, includes land that is used
for shooting, that interest in the land will be directly affected by
the path, and therefore those who own a sporting right to carry out
shooting on the land should be consulted, and that right should be in
the Bill. That is important from the public safety perspective, as much
as any other. Owners of sporting rights need to be fully consulted and
informed as to where members of the public may go, so that they can
take the necessary measures to prevent any risk to the public
exercising their right of
access. Martin
Salter: The hon. Gentleman will be aware of starred
amendment 65, which seeks to achieve the same objective; it was tabled
in my name and that of my hon. Friend the Member for Southampton, Test.
Does the hon. Gentleman recognise that it is not just shooting
interests that are concerned about this issue and that it could impact,
in certain circumstances, on recreational sea fishing? He quite rightly
raises the matter of public safety. Of course, the casting of heavy
leads or weights from the shore is something that is potentially
dangerous and sea fishermen do not want to do that if there is any
chance of causing injury to innocent passers-by. There is a wider
sporting interest at stake here than just shooters and I support that
interest.
5.45
pm
Mr.
Benyon: I entirely agree with the hon. Gentleman. It is
for that reason that we used the words, “sporting
rights”, rather than just the word, “shooting”.
When we have this route in mind, we must not think simply of particular
areas of the coast that may be relevant to Members in this room. There
may be a very narrow area of land between the sea and, for example, a
cliff, or there could be much more open land. We have to bear in mind
the needs and legitimate rights of all relevant sporting organisations
and their supporters.
I believe
that owners of sporting rights should be included in the definition of
those who have a relevant interest in land, as they are under the CROW
Act. The failure to include owners of sporting rights in that way means
that they are, for example, not covered by the fundamental principle
and statutory obligation behind the coastal access provisions that
Natural England and the Secretary of State
must “aim
to strike a fair balance between the interests of the public in having
access over land and the interests of any person with a relevant
interest in the
land.” We
come back to that important phrase again—“aim to”.
This issue comes down fundamentally to that point.
In addition,
there are provisions that enable those with a relevant interest to make
an objection to a coastal access report under schedule 1A to the
National Parks and Access to the Countryside Act 1959, which is
introduced by schedule 19 to the Bill. Hence, those provisions enable
those with a relevant interest to have access to the independent
appeals process. It should be noted that the need for access to a right
of appeal has been clearly demonstrated by the CROW Act. Under that
Act, there have been approximately 3,000 appeals to date, of which
about two thirds have been successful. Clearly, those responsible for
implementing access do not always get it right. Clause 296 states that
those with a relevant interest in land are persons whom Natural England
must “take
reasonable steps to
consult”. A
further area of concern is sporting rights on existing CROW access land
and what happens when land is reclassified as “coastal
margin”, especially in respect of spreading room. The owners of
those existing sporting rights have certain rights under the CROW Act.
Under section 22, for example, they can close land at their discretion.
The Government propose that that right will not apply to coastal
margin, with no distinction being made between the route and additional
spreading room. If such rights are to be lost, owners of those rights
should have full statutory rights to object to proposals to reclassify
land where existing rights are at stake.
That issue
does not seem to be addressed anywhere in the Bill, or in any
supplementary guidance, which means that owners of sporting rights will
only have the limited rights of any member of the public where land
with existing CROW protections is reclassified. It is worth recalling
that the Joint Committee on Human Rights stated, in respect of the
absence of an independent appeals process from the Bill as it was
introduced and happily later amended, that that rendered the Bill
incompatible with article 6 of the European Convention on Human Rights.
The Joint Committee
noted: “In
all comparable legislation providing for the designation of public
rights of access over private land there is provision for a right of
appeal by those affected to an independent court or
tribunal.” The
Joint Committee went on to
say: “The
Secretary of State’s decision approving the coastal access
scheme will amount to the determination of the ‘civil
rights’ of those with an interest in the land affected, within
the meaning of Article 6(1)
ECHR”. That
is the right to a fair hearing. The Joint Committee recommended that
the Bill be amended to provide a right of appeal to an independent
body, saying that an
amendment “would
remove the incompatibility with Article 6 ECHR that we have
identified”. That
led to the introduction of an independent right of appeal, which is
greatly welcomed.
There is a
key group of people who do not have the same status as those listed as
having a relevant interest, which does not sit comfortably with the
reasoning of the Joint Committee, which specifically refers to the
determination of the civil rights of those with an interest in affected
land. The position appears to be all the more arbitrary and unjust,
given that the Bill gives greater protection to those with no legally
enforceable rights than to the owners of sporting rights who do have a
legally enforceable property right.
The
Government’s arguments in another place on this issue do not
stand up to scrutiny. The Minister, Lord Hunt, argued that land under
CROW included a number of grouse moors that made shooting interests
particularly pertinent and that Natural England’s involvement
with local authorities would ensure that shooting interests were
properly represented because local
authorities “will
have an in-depth knowledge of local interests, such as shooting
interests, and will be able to advise Natural England on the proper
persons who should be consulted.”—[Official Report,
House of Lords, 1 June 2009; Vol. 711, c.
31.] First,
the CROW Act makes specific provision for grouse moors. Obviously that
is not particularly relevant here, but that provision applied only in
respect of dogs under section 23, which the Government intend to
exclude under the proposed section 3A order. That is understandable in
the context of the current proposals with regard to such matters as
grouse moors, although it does not address the other part of the
measure, which deals with lambing. I believe that that could be of
great concern to farmers in certain parts of coastal England and Wales.
It also fails to take account of the fact that shooting takes place on
all types of land, and especially in coastal areas. Some 59 leases are
granted by the Crown estate to wildfowling clubs covering around
500 miles of the foreshore. These are very ad hoc
arrangements enabling people with a great love of the countryside to
contribute to conservation. It is hard to see how their rights will be
properly secured under this
provision. Secondly,
there is no reason to suppose that local authorities have an in-depth
knowledge of the complex nature of land ownership in their areas. They
understand certain aspects of it, but I would not expect my local
authority to have an in-depth understanding of the wide variety of
sporting rights that exist in an inland area like mine and I am sure
that the same would be true in coastal
areas. Thirdly,
the Government propose to disapply section 22 of CROW under
the proposed section 3A order, which allows the closure of land for a
limited number of days at the discretion of owners or those with an
interest in the land, and is vital to those exercising sporting rights.
Section 22 of CROW would continue to apply to spreading room, which is
the coastal margin other than that over which the route passes, but
section 24 can now be used by owners of sporting rights to
obtain closures or restrictions to enable them to exercise their
rights. There is an essential difference between people who own the
land, and who could live many miles away and not have much interest in
it, and those who are on the land all the time and could have an
interest in the sporting potential that it
offers. Section
24 relates to applications for closures or restrictions in respect of
land for land management. Is the activity of shooting by a person
owning sporting rights separate from the land in fact land management
for the purposes of the Bill? In correspondence, DEFRA has stated
that
“land management
reasons... can include management for shooting.”
Does that only cover
management activities preparatory to shooting but not the actual
shooting, or does it cover both? We need to know the answer.
Furthermore, the
process of having to apply may be impractical in cases in which the
decision on whether to shoot has to be taken at short notice,
particularly in pest control. We want sea
anglers to be able to go and enjoy their activity at a moment’s
notice. That is part of the joy of activities in the countryside: one
does not have to sit down and plan or spend endless hours on the
internet trying to find out where exclusions exist. We should be trying
to work with the grain of wishes of users of the countryside. If a
request is denied, there is no guarantee of a swift appeal under
section 30 of the CROW Act. Rights could be rendered meaningless by
burdensome bureaucracy and delay. It should also be noted that the
application of section 30 won during the Bill’s passage in
another place could be rendered meaningless by the use of a future
section 3A order by which the remaining CROW protections could be
disapplied in respect of coastal margin.
How can
owners of sporting rights take comfort from any assurance if they are
not even covered by the statutory duty in the Bill under which Natural
England and the Secretary of State must aim to strike a fair balance
between the interests of the public in having access and the interests
of a person with a relevant interest in the land? According to the
Bill, they have no relevant interest greater than any other member of
the public. That is clearly nonsense. As a look at the CROW Act or the
basic principles of property law in this country will confirm, the
arguments advanced to date by the Government have produced no good
justification for what some must see as an attack on a fundamental
right where the proper relationship between citizen and state are at
risk.
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