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In doing so, he is seeking to put the fair balance concept into the context of the coastal access duty and the coastal access scheme. If one were not to do so, and to see something as being fair but separate from the coastal access duty and scheme, there might be a rather different outcome.
Perhaps the Minister will tell me that the new schedule on coastal access reportsto which it is clear we shall all soon agree, and which defines fair balance in the same terms as the clausemeans that my concerns are unfounded. I do not see a direct connection between the clause and the schedule. While the amendment may not be required because of the purpose of the schedule, I note that the schedule requires the person appointed to make the determination to consider whether the proposals do not fail to strike a fair balance. I am a little concerned that the language around this is slightly fuzzy. It is important that there is consistency and clarity in the aim of the coastal access duty. I beg to move.
Earl Cathcart: My Lords, I am delighted that we have cleared up the error in the Marshalled List. The amendment as written in the Marshalled List seemed to make little or no sense, so it is good that we are all looking at the correct page in the Bill.
The noble Baroness, Lady Hamwee, will not be surprised to hear that we do not support the amendment. If there is to be any derogation from the fair balance, we would rather see it fall to the benefit of those with the relevant interest in the land. While we fully support the expansion of public access, it should not override a persons right to the enjoyment of their property. It is unavoidable that there will be a few breaks in the route and several diversions away from the coast. I hope that Natural England will work hard to keep them to a minimum. This amendment seems to put the objective of coastal access above allor mostother considerations, whereas the Bill aims 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. We prefer the wording as it stands in the Bill.
Lord Davies of Oldham: My Lords, I am grateful to both noble Lordsto the noble Earl, Lord Cathcart, who has expressed an important point in defending the wording of the Bill and who will not be too surprised that I share that view, and to the noble Baroness, who assayed a guess about what I might be likely to say, that the Bill provides this balance. That is exactly what I am going to say. I am involved in the exercise of reiteration.
I accept entirely the noble Baronesss point that the concept of fair balance must be at the heart of the legislation. We wanted that concept to be enshrined within the coastal access duty; it involves weighing up the different interests of landowners and the public and coming to a fair division in the light of what are obviously foreseeable competing interests. The Bill makes the requirement without the addition of this wording, which as the noble Earl said might be interpreted as loading the issue one way. The Bill strikes a proper balancenamely, that it is the duty of the Secretary of State and Natural England to strike a fair balance, which is absolutely integral to the coastal access duty. That is why I would contend that the Bill gives effect to precisely that objective and has it running as its crucial principle. That balance has to be struck as regards any particular piece of land; after all, the route has to go somewhere, and these decisions have to be taken in the light of particular pieces of land.
The considerations that the Secretary of State and Natural England will have will be to balance all the options between differing landowner interests and those of the public. It is the intention that Natural England and the Secretary of State should do everything practicable to achieve a fair balance. The current wording of the Bill is a strong inducement for them to achieve that. We would hope and expect that the consensus at the heart of the duty will be achieved in most cases. The Bill expresses things as a proper balance in those terms.
I am grateful for the noble Earls support. I hope that the noble Baroness will feel that, having explored this issue further, the Government are at one with her as regards the principle and intent. We believe that the Bill expresses that and hope that she will feel able to withdraw her amendment.
Baroness Byford: My Lords, will the Minister clarify an issue for me? When in the south-west, for example, a coastline route is already agreed, I presume that it is not within the Governments thinking that they will alter that route, unless it is due to erosion, and that the existing lines to which the public have access will not be changed. Would it be possible that access for an island site, for example, which does not have access across it now but has access agreed behind it, might be open for negotiation again? I am not quite sure from his response exactly where we are on that issue.
Lord Davies of Oldham: My Lords, my response to the noble Baroness is to say, as I think I did in speaking to an earlier amendment, that we want to build on what is already there. Access to the coast already exists in a substantial part of the country. In some parts it does not meet the Bills criteria, which is why work will need to be done there, and some parts of the coast are not accessible, which is what the Bill concerns itself with. She mentioned the coastal path in the south-west of England. When a path is working well and no factors intrude to necessitate changing the arrangements, Natural Englands priority will not be to address that area, and we would not expect it to. As a result of its studies and preliminary work it is well aware of the need to look at the parts of the coast that require full examination because access is currently limited.
What we cannot rule out entirely is the need for Natural England to address itself at some stage to problems that occur even in the best-established circumstances. As the noble Baroness indicated, erosionwhich is perhaps less pronounced in Cornwall than elsewhere on Englands coastwill change positions that would otherwise be satisfactory, because the natural conditions have changed.
I want to assure the noble Baroness that Natural England will have its work cut out in addressing itself to those parts where there is currently no access or where obtainable access falls a very long way short of the concept of the coastal path as defined in the Bill. I would surmise that it will not be interfering with the coastal path in the south-west of England for a considerable time unless great concern is expressed about a natural feature that changes the situation of the path to make it less attractive and less passable than it is now.
Baroness Hamwee: My Lords, the amendment is about a fair balance. The imbalance is in the consultation, as Natural England will have to consider representations from persons with a relevant interest but not to consult bodies representing user groups and the public. That is why this is particularly important. The imbalance is not corrected in the new schedule, or at least it is not without reaching the point having a public inquiry.
We have thrashed this out as much as we are going to. After reading the whole Bill with the new schedule, colleagues in the Commons might wish to re-rehearse some of the arguments. At this stage, I beg leave to withdraw the amendment.
( ) In aiming to strike a fair balance under subsection (3), Natural England and the Secretary of State must have regard to any benefit accruing to any person with a relevant interest in the land from the expectation of privacy.
Lord Taylor of Holbeach: My Lords, my amendments in this group seek to add to the Bill the specific consideration of the loss of privacy that the establishment of this route and coastal margin will mean.
My first amendment would add a special consideration for where a person with a relevant interest in land is making a livelihood from the expectation of privacy. Whether this is renting out an exclusive beachfront property to the rich and famous or providing a cliff-top wedding location, or the more prosaic question of whether it is a good idea to have members of the public wandering through a caravan park, there are many ways that a businessman needs to be able to guarantee privacy in order to sell a service.
My second amendment addresses my concern that the Government will use the order-making power in Clause 293 to radically affect the list of excepted land that was established in Schedule 1 to the CROW Act. It would prevent any land where there is an expectation of privacy being designated as land over which to allow access.
In particular, the amendment would address concerns about the Governments intention to disapply the CROW Act restriction that land within 20 metres of a dwelling must be excepted land. I take the Ministers point that 20 metres is often an arbitrary distance, but I believe that it is also near enough the length of a chain or a cricket pitch. So I can see not only the arbitrariness of 20 metres but also its importance. Rights of way often pass within this distance and there should be proper consideration of the fact that allowing access right up to a house, even where the land is not part of their garden, could severely compromise a reasonable expectation of privacy. Can the Minister reassure me that definitions of excepted land will not be dismissed without due regard to this expectation? I beg to move.
Baroness Byford: My Lords, I will not repeat what my noble friend has so clearly said, but the issue has been raised with me on several occasions. One such provision in particular, if it were so moved, would affect a wildlife sanctuary, which is clearly undesirable. I hope that the Minister will be able to give assurances to my noble friend. I know that we are not in Committee, so we cannot come back again, but I formally support this important amendment.
Lord Wallace of Saltaire: My Lords, when the noble Lord, Lord Taylor of Holbeach, was talking about the need to think in commercial terms about privacy in coastal spots, I was thinking very clearly of nudist camps on the south coast, but I suspect that he is not talking about that on this occasion. We on these Benches and the Conservatives have some fundamentally different approaches to rights to privacy and access. I was almost humming The Land song
As noble Lords know, we believe that public access is important here and that rights of access to the coast and the beautiful views that one gets from the coast should override the rights of privacy beyond a certain point. We are therefore opposed to strengthening the rights of landowners here. Given the difference between the coast and the landscape in general, it is not proper to put in the same sort of rights here as we have in other clauses. We are not willing to support the Conservative amendment, and I very much look forward to seeing some of the beautiful views which the noble Lord, Lord Taylor of Holbeach, would prefer to retain for those who are privileged enough to have bought for very large amounts of money the foreshores in Poole, parts of Dorset and Devon, and elsewhere.
Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have spoken on these amendments, particularly the noble Lord, Lord Taylor, for setting out so clearly the concerns that some may have about the possible location of the coastal route and its
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As the noble Lord indicated, his first amendment would ensure that the expectation of privacy is considered as part of the fair balance between the public and personal relevant interests in the land. Of course the privacy of the landowner will be part of the consideration of the relevant interests of any person in the land, which will be taken into account alongside other relevant considerations. The noble Lord is right to emphasise it, but it is part of the landowners interests. The flexible way in which the legislation is intended to work, alongside the duty on the Secretary of State and Natural England to strike a fair balance between those with an interest in the land and the interests of the public, plus the provisions for certain categories of land such as buildings and their curtilage to be excepted from the right of access, will, we contend, enable Natural England to avoid locating the route where there could be an adverse impact on business or property. I understand the point that the noble Lord, Lord Taylor, madethat privacy is part of the ownership rights of the landowner, which he identified as a category.
Natural England has made it clear in section 9.9.2 of its draft scheme that where the route goes to the landward of a holiday cottage, any buildings and their curtilage, including gardens, which are excepted land, will not become spreading room, even where this prevents the public reaching adjacent cliffs and beaches. I draw attention to the fact that later today we will consider government Amendment 124U, which includes an objection procedure that will enable a person with a relevant interestalong the lines indicated by the noble Lord, Lord Taylorwho wishes to seek a modification or make an objection to Natural Englands proposals for the route to put this forward to an appointed person for consideration. We will discuss that amendment later, but I refer to it now because it is an important aspect of privacy rights and the rights of the landowner. Therefore, I do not consider that it is necessary to include the proposals set out in Amendment 124FZA, as I maintain that we have taken into account the interests of the landowner and have allowed for objections to be made where that is appropriate.
Amendment 124SA seeks to ensure that where land is excepted land and there is an expectation of privacy on that land it will not be excluded from the description of excepted land. We have said that we intend to amend the categories of excepted land in the CROW Act so that land within 20 metres of a dwelling and land within 20 metres of a building which is used for housing livestock, not being a temporary or movable structure, is not excepted land for the purpose of coastal access land. These are categories of land that we do not consider appropriate to except in the context of the coast where, unlike the extensive areas of mountain, moor, heath, down and registered common land under CROW, access will be limited to a margin of land next to the sea.
In addition, Natural England will use existing access, for example existing rights of way, where it is appropriate to do so. As we hinted earlier, many rights of way
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Where there is development at the coast, Natural England will seek to position the route to the seaward or may in some circumstances, of course, go inland around the development. Where there are caravan sites or campsites, the best position for the route will often be along the seaward edge, but we are proposing that the route may pass through a site if this is the best, or perhaps even the only real, alternative. This would simply involve a route through; it would not include the concept of spreading room. That would not be created on land occupied by a formal camp or caravan site; only the coastal path would be the subject of negotiation, consultation and decisionnot the spreading areawhen the path went through private property of this kind.
As elsewhere, Natural England will consult the site operator on the best means of achieving continuity of access along the coastwhich is the most desirable optionand the route will be chosen to balance business interests with public interests. Natural England will also be able to place restrictions on the use of such access, if that proves to be necessary in certain circumstances. So I hope that the noble Lord, Lord Taylor, will accept that we understand the motivation behind the amendment, and that we are addressing this in particular and considerate terms so that there can be a balance between what is often quite an extensive area of a caravan site or a formal campsite and preserving the concept of the coastal path.
I hope that the noble Lord will accept the reassurances on that front and that, on his first amendment, as I have indicated, we recognise the concept of privacy as being part of the interest of the landowner. However, at times there will be marginal and difficult decisions, and later this evening we will propose an amendment which gives rights to the landowner to challenge any position that Natural England establishes. I hope that the noble Lord is sufficiently reassured to be able to withdraw his amendment.
Baroness Byford: My Lords, before my noble friend does that, perhaps I can ask the Minister a question. He explained quite rightly that this matter will go out
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Lord Davies of Oldham: My Lords, the noble Baroness raises an issue which I had not thought was in the context of these amendments. We have of course considered these points previously. It is important that we establish the important ground rules of fairness between the interests of the landowner or any business and Natural Englands proposals on the coastal path. It is clear that the concept of fairness will minimise any adverse impacts on the landowners interests. However, the Bill is not drawn up on the premise of compensation on these issues, and the noble Baroness will know that we had some fairly substantial discussion about this during previous stages of the Bill. I have nothing further to add to that at this point.
Lord Taylor of Holbeach: My Lords, this has been a useful debate, and I thank the Minister for his response. It has brought us round to the importance of privacy as a factor in peoples lives. It is not just the interests of landowners that are being addressed by these amendments, but those of the people who use these assets for their enjoyment and leisure, such as people on holiday. I gave a few examples which help to put privacy in context. It is a privilege, to which people are entitled in normal circumstances. If the noble Lord, Lord Wallace of Saltaire, had been involved earlier in these debates, he would know that these Benches do not seek to do other than welcome coastal access. We are talking about the mechanisms to bring about such access, and to achieve the ends with a minimum sense of grievance on the part of the people who are being asked to surrender rights that they believe they have. We are legislating to give the general public access to their property, so it is reasonable to set up mechanisms that take their rights properly into account.
I was disappointed by the Ministers response to my second amendment because the Government are taking significant powers on themselves with the proposed 3A order to amend safeguards that people have worked hard to keep. Amendment 124SA is necessary to preserve those safeguards and to ensure that the power is not used inappropriately. I warn the House that I am likely to return to Amendment 124SA when we come to the appropriate point in our debates. In the mean time, I beg leave to withdraw the amendment.
Lord Taylor of Holbeach: My Lords, my amendments in this group return to an issue which I raised in Committeethe question of what is considered a relevant interest in land. The Minister stated his view that the CROW Act definition, which is wider than the definition used here, is more appropriate on the grounds that coastal land does not give rise to the sort of rights, particularly sporting rights, to the same extent as the land that was being made accessible in the CROW Act.
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