Huw
Irranca-Davies: We might be able to deal with this
relatively quickly. I will give an assurance right at the outset,
because I think that the issue comes down to how the CROW Act can be
used. This Government have no intention of amending the provisions for
appeals in section 30 of CROW, to which I will turn in a moment. Any
such amendment would be made under a section 3A order, which would
itself be subject to affirmative resolution in Parliament, and I am
sure that that would inspire lively debate. It is not the
Government’s intention to change the categories of person who
might make an application for restrictions and exclusions under section
24 of the CROW Act, and I suspect that the hon. Gentleman, if he were
in my place, would have no intention of amending them.
Having said
that at the outset, I will go into detail. Clause 296 inserts new
sections into the National Parks and Access to the Countryside Act 1949
to provide for the coastal route. New section 55D(5) requires Natural
England to identify and include in a coastal access report all
restrictions and exclusions that would be necessary if the coastal
access report were approved. Landowners and others may also make
representations on the final report, including proposals for additional
exclusions and restrictions or changes to those proposed by Natural
England.
In addition,
as we have discussed, those with an interest in affected land may make
objections on certain grounds, including the inclusion or failure to
include a proposal for a restriction or exclusion. New
section 55F(2) requires Natural England to make directions
relating to any exclusions or restrictions in accordance with its
proposals set out in an approved coastal access report, or with any
variations of those proposals made by the Secretary of State. Taken
together, the provisions require all exclusions and restrictions
necessary at the time when the coastal access report was drawn up to be
included in the report and directions to be given putting in place the
exclusions or restrictions proposed in the
report. Subsequent
changes to the situation necessitating new or different restrictions or
exclusions are catered for in sections 24 and 25 of CROW, under which a
person with an interest in any land may make an application for an
exclusion or restriction of access for land management purposes. We
debated that to some extent in earlier clauses, and I have made clear
my intention not to revisit it. The applicant may appeal to the
Secretary of State where the relevant authority fails to make a
direction in accordance with the
application. Amendment
45 would insert a new subsection to section 55J, to provide that the
new provisions inserted into the 1949 Act by clause 296 do not preclude
a person with a relevant interest in affected land from appealing
against a decision to refuse application from an exclusion or
restriction of access after the approved proposals and report have been
implemented.
I say to the
Committee, as I have said in our earlier discussions on relevant
interests, that those with relevant interests, as defined in section 45
of the CROW Act, will have the same rights as they do on CROW land to
apply for restrictions and exclusions of access for land management
reasons. Natural England must issue a direction for a restriction or an
exclusion if it is necessary and access cannot be suitably managed in
any other way. If the application is turned down or a direction
proposed by Natural England is not in accordance with the terms of that
application, there is a right of appeal to the Secretary of State under
section 30 of the CROW Act.
I repeat that
it is not the Government’s intention to make changes to the
categories of people who may make applications for restrictions and
exclusions under section 24 of the CROW Act. Once again, I make it
clear that the Government do not intend to amend the provisions for
appeals in section 30 of the CROW Act. As I have said, any such
amendment would be made under a section 3A order, which itself would be
subject to the affirmative resolution process in both Houses of
Parliament. Therefore, any such amendment would come under a fair
degree of scrutiny and we have no intention of making any such
amendment. We have already indicated the main measures that we intend
an order, under section 3A, to contain. We will consult on these
proposals before submitting them to Parliament. I have already
clarified what matters we do not consider relevant to bring
forward.
We believe
that the extensive consultation and representations process before the
position of the coastal route is determined, combined with those
provisions in the CROW Act for a relevant interest to apply for
restrictions or exclusions to access, will indeed create that
principled point behind the Bill, which is getting that fair balance in
ensuring that all views are appropriately
considered. Having
given that clarification and reassurance, I urge the hon. Gentleman to
withdraw the
amendment.
Mr.
Benyon: The Minister’s words are on the record and
I am happy that that clarification has been given. Therefore, I beg to
ask leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
Question
proposed, That the clause stand part of the
Bill.
Mr.
Benyon: Before we leave clause 296, may I ask the Minister
to give assurances about the physical feature issue of a coastal
margin? There is concern about certain areas where there is no
definable point at which the spreading room could be deemed to be
finished. There are plenty of places where, for example, a large field
runs down to the coast. What I do not want to see is landowners rushing
before the Bill comes in to place fences in what were formerly open
fields to reduce both the visual and physical amenity for walkers and
anyone else who enjoys that part of the countryside. Therefore, some
explanation needs to be given about what features constitute a limit to
where the spreading room finishes.
I suspect
that we will come on to this issue when we discuss amendment 66, in
respect of park land. However, it is conceivable that there are areas
where it would be impossible for the walker to determine right of
access,
unless enormous amounts of effort are made on signage and possibly even
on creating barriers that none of us want to see. I would welcome any
explanation that the Minister could give on that
issue. 1.45
pm
Huw
Irranca-Davies: To expand on the debate that we had on
this issue earlier, it is certainly conceivable that, for example,
where there is no clear physical feature that can be easily identified,
Natural England, in consultation with the landowner, could flag up an
area in one way or another to identify exactly where the spreading room
is. That possibility is there.
I concur with
the hon. Gentleman. It had also gone through my mind that a concerned
landowner might rush to move that field fence. I am not saying that
many would do—I do not think so. But if they were worried about
where the spreading was going, that picket and wire fence might
suddenly go 10 yd seaward. I do not think that would happen, by and
large. Clear physical features can be described; an absence of clear
physical features enters the realms of mapping, or using some other
flexible approach such as determination by a marker. A variety of
approaches can be used to reassure landowners as well as walkers about
where they should walk and for Natural England to do a proper localised
approach to bring in this fore edge, which I think we would all want to
do. Finally,
I would not want to limit the flexibility to use appropriate physical
features. It may not be easy to identify them all in advance. However,
Natural England may want to consider whether it can give clarification
in its scheme, which will set out in more detail the approach it wants
to take in implementing this part of its coastal access duty. The
scheme will be subject to public consultation once the Bill becomes
law. That will be a chance for all Committee Members and others with
concerns to have an input into the final scheme, including where the
boundary is on the landward side. The final scheme has to be approved
by the Secretary of State. I urge Committee Members and those listening
to our deliberations who have concerns to input into that consultation
so that the final scheme is
clear.
Mr.
Benyon: I am grateful for that explanation from the
Minister.
Question
put and agreed to.
Clause 296
accordingly ordered to stand part of the
Bill.
Schedule
19Schedule
1A to the 1949
act
Mr.
Benyon: I beg to move amendment 48, in schedule 19,
page 305, leave out lines 33 to
35. We
are making great progress but this is a really important issue. I hope
to get reassurance from the Minister and for her to understand what we
are trying to achieve. The amendment is designed to firm up the
objection process in schedule 19 to ensure that the Secretary of State
cannot overturn a recommendation of the independent appeal body except
in very limited circumstances. Proposed new paragraph 16(3)(a), which
we seek to remove, states that the Secretary of State is bound to adhere
to the recommendation of the independent appeal body on an objection
unless that recommendation
involves “an
assessment of the
significance” of
a coastal access matter to someone with an interest in the land. That
means that the Secretary of State can overturn the decision of the
independent appeal body if the significance of the coastal access
rights has been assessed. I would be interested to learn when such
rights would not be assessed with regard to an objection. How could the
appointed body make a recommendation about fair balance without
considering the impact of the proposals on the landholder and the
public? Indeed, the appeal body would be failing in its duty if it
were not to consider the significance of matters to users
and owners. It would, therefore, appear
that sub-paragraph (3)(a) —introduced as an
amendment on Third Reading in another place—provides a loophole,
giving the Secretary of State the ability to overturn any decision made
by the independent appeal body. I reiterate that we were glad to see
the addition of the independent appeal process in another place.
However, we are concerned that this sub-paragraph serves to dilute the
authority of the independent body’s decisions.
When the
appeal process was debated in another place and with industry bodies,
it was repeatedly asserted that any objection or appeal process must
meet the terms of article 6 of the European Convention on Human Rights
and, in particular, provide an independent appeal process that had some
validity and would not be overturned by the Secretary of State. If the
Secretary of State is able to overturn almost any decision, it makes a
mockery of the so-called independent appeal process. That is not what
was intended by the noble Lords in another place, or the industry
bodies that were extensively consulted. Paragraph 16(3) of schedule 19
specifies the circumstances in which the Secretary of State might
reasonably go against the recommendation of the independent appeals
body and includes the ability to overturn recommendations that are
“perverse or irrational” or for which there is
“insufficient evidence”. We have no problem with the
Secretary of State exercising his powers in such circumstances.
However, through amendment 48, we seek to remove
sub-paragraph (3)(a), which effectively gives him the power to overturn
any decision. It completely undermines the whole objection appeals
process. Indeed, peers, in the other place, have expressed their
concerns about whether the provision even complies with the European
convention on human rights. In order to ensure that the objection
process is enacted as originally intended, we seek the removal of this
provision.
Mr.
Swire: The retention of sub-paragraph (3)(a) raises a
question about why, if the Secretary of State has so little faith in an
independent appeals body, he bothers to have one at all. If he wants to
decide all these matters himself, why does he not just strike out the
appeals body and make decisions himself based on each and every
representation? It seems to be pretty straightforward. An independent
appeals body, the decisions of which, in exceptional circumstances, the
Secretary of State could overturn—but only with good
reason—will give comfort to landowners and land users alike.
That is
where the final decision in any arbitration should take place. In order
to reassure all land users, the Minister should agree that our
amendment is a positive step towards a
solution.
Ann
McKechin: This is an important debate and I would like to
spend some time trying to answer concerns raised this afternoon and in
another place. The objections mechanism set out in proposed new
schedule 1A to the 1949 Act in schedule 19 to the Bill was of great
concern to those in another place, many organisations and a number of
committees. I appreciate the time and help that many gave to help us to
introduce the process through which objections may be made. An
objection can be made on the grounds that the proposals do not strike a
fair balance within the meaning of clause 293, in so far as they relate
to any of a list of particular matters, including the position of the
route. The Secretary of State will make a determination, under section
52(1) of the 1949 Act and Natural England’s coastal access
report, while having regard to any objections, Natural England’s
comments, any representations forwarded to the appointed person and the
recommendation of the appointed
person. Amendment
48 would delete paragraph 16(3)(a), which deals with a situation in
which the appointed person considers a question of fact, and would
change an amendment tabled by the Government in the Lords, the purpose
of which was to ensure that if a report by an appointed person relating
to an objection contained a statement of a finding or fact, the
Secretary of State, in making the determination, would be bound by that
finding, unless they were satisfied either that it was “perverse
or irrational”—in one of the ways that a court might find
an administrative decision perverse or irrational under judicial review
before setting it aside—or else that it
“involves an
assessment of the significance of a matter to any person with a
relevant interest in land or to the
public”. Angela
Watkinson (Upminster) (Con): I am not sure whether this is
the correct time to raise this point, but I have received a letter from
a constituent of mine who is also a naturist. Other Committee members
might have received similar letters. My constituent was inquiring into
their right to access beaches, the legal definition of the word
“annoyance” and the question of alarm and distress. I
apologise for springing this unexpected question on the Minister, but I
would value her
advice.
Ann
McKechin: I am grateful to the hon. Lady for raising that
question; I have to say that that issue does not often arise in
Scotland because it is usually too cold and wet. In Scotland, breach of
the peace legislation usually deals with alarm to the lieges and other
things. I will write to her on that particular point because, as she
will appreciate, I want to get clarity. English law on the matter is
very different, as I observed when I was down in London for the
trooping of the colour ceremony. I happened to be walking along
Piccadilly in the afternoon wearing my nice smart dress when I observed
the naked bike ride coming down the road. I have to say that it was
quite a shock because we never see anything like that in Scotland. That
shows that that the laws in England and Scotland on that question are
materially different.
I return to
the issue that we are trying to debate today about the significance to
any person and why it is important that the Secretary of State has the
discretion to review it, which, in answer to the hon. Member for East
Devon, would occur only in exceptional circumstances. We do not want to
reverse the decisions in every case, but there are differences. First,
it would be difficult to reconcile the role of the Secretary of State
in approving the proposals as a whole with the fact that, in relation
to a particular part of the proposals, the appointed person would have
already taken a decision that was binding on the Secretary of
State. Secondly,
there is a significant risk to consistency of approach, both in
relation to other parts of the proposals that are the subject of the
same report and in relation to proposals in other reports that relate
to other parts of the English coastal route. There might well be
generic types of topography—headlands, for example—on
which it may be anomalous and unfair not to adopt a broadly consistent
approach in the absence of local circumstances justifying a difference.
There are likely also to be other parts of the route where similar
considerations arise but which have not been the subject of objections.
The question would then arise of whether the decision of the appointed
person in relation to an objection relating to one part of the route
constrained the Secretary of State from achieving consistency between
the approach to that part and to other parts where no objections had
been raised.
Thirdly, it
would be difficult to require the inspector to consider everything that
the Secretary of State would take into account. For example, it would
not be appropriate to require the inspector to consider representations
relating to other parts of the route that were not subject to
objections, but those representations might mention considerations
relevant to maintaining a consistent approach to the route that was
subject of the report as a whole.
Fourthly,
given the structure in which the Secretary of State has power to
propose modifications himself, as in the 1949 Act that provides for it,
the appointed person cannot know what they might be in advance.
Modifications proposed by the Secretary of State in relation to
contiguous land might necessitate consequential changes to the
modifications proposed by the inspector in relation to the land subject
to the objection, if the continuity of the route is to be preserved
without a mismatch. The Secretary of State might propose more extensive
and radical modification proposals that make the appointed
person’s decision on a particular spot no longer applicable. For
example, in a case where the objection links to a part of a route that
runs along an estuary or around a headland, the Secretary of State
might decide that the route should not run up that section of estuary
at all or should run across the neck of the headland. Where the
proposed route crosses the neck of the headland, he might decide that
the route should instead go around the periphery of the headland. Where
the route crosses in front of a house, he might decide that it should
skirt, not only behind that house, but also behind an area of land. In
such cases the decision of the appointed person in relation to the spot
subject to the objection might well be superseded by the more radical
modifications proposed by the Secretary of State. Under those
circumstances, it would be entirely inappropriate for the appointed
person’s decision still to be binding on the Secretary of State
if he is going to make a modification.
Proposed new
schedule 1A, paragraph 16(3)(a) to the Parks and Access to the
Countryside Act 1949 refers to a finding
which “involves
an assessment of the significance of a matter to any person with a
relevant interest in land or to the
public”, and
is necessary to ensure that the Secretary of State is not precluded
from reaching a view on the significance to the landowner or the public
of, for example, the proposed position of the route. That clarifies
that such an assessment is not to be treated as a finding of fact for
the purpose of the schedule. So, for example, where the assessment
relates to the significance of the position of the route, whether to
the landowner or to the public, either assessment may be regarded as a
mixture of fact and judgment or opinion. A judgment as to such
significance in not separable in any sensible way from the judgment of
the relative significance of the position of the route to the landowner
and the public, which is at the heart of the assessment of whether a
fair balance has been struck. It is quite different from ordinary
questions of
fact.
2
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