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The question is whether we should limit it in the way Amendment 27 proposes, or in the way the Government’s Amendment 28 proposes. Given the fact that I, too, am not certain how one would define “exceptional circumstances”, I believe Ministers have responded to the points made by the Constitution Committee, as represented by Amendment 27, and I find Amendment 28 very reasonable. It comes a long way to meet the concerns of most of the members of the Constitution Committee. I, therefore, support Amendment 28 and, sadly, if Amendment 27 is pressed, I shall not be supporting it.

Lord Montagu of Beaulieu: My Lords, on Second Reading I declared an interest as the owner of an estuary and some miles of Solent shore where for years my family has given public access, including a nature reserve. It did not feel right to intervene in Committee because of the extent of my knowledge of the situation. Now we are sending the Bill to another place, I want to say how delighted I am that progress has been made to make it a fairer and more workable situation. At an early stage, the Government stated that parks and gardens would be excepted, but later they retreated from this position and inserted the word “curtilage”. I fear that the reference to curtilage will lead to many time-consuming disputes. I therefore urge the Government to provide in another place that that is replaced with “parks and gardens”, which is much more understandable.

The Government have made a very welcome concession on the important principle of an independent appeal. I am most grateful. I welcome that, but we must ensure that the Bill has clauses that give weight to legitimate concerns, such as those of coastal owners and businesses.

The legislation has being drawn up on the assumption that rules and definitions of a coastal plan can be applied in the same way to a river valley. That is oversimplistic. Rivers are very different animals. They are often lined with high levels of residential and commercial property, while in other places there are sensitive nature reserves. Where a coastal path meets an estuary, for instance, I urge that the two sides of the river are as much as possible joined by one existing right of way. Sometimes, these will be further inland, but such a scheme would be much easier to implement.

Finally, I am deeply concerned that in the passage of the Bill the need to safeguard wildlife has been largely ignored. Our coasts and estuaries contain some very important havens for animal life, but their condition could well be threatened. Let us be honest and say that there is a clash between nature and government policy. On the assumption that Natural England will decide on the route, it must make quite sure that it does nothing that would harm natural life. I fear that it will be overruled by its political masters. At a time when bird numbers are diminishing and birds are becoming

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extinct, it is very important that we apply the Sandford principle, that nature should take precedence over humans.

Lord Greaves: My Lords, I oppose the amendment in the name of the noble Lord, Lord Goodlad; we are prepared to support the government amendments. If we go right back to the Bill's introduction to this House—and before, when we were discussing it in pre-legislative forums—a strong view was put forward by Natural England, the recreational groups and everyone else that we do not want the precise system of appeals that we have under the CROW Act, because they have been time-consuming, expensive and, in many cases, have not produced the right results. They are based on the appeal system under the planning system; the system is almost exactly the same. That may be appropriate for planning, but it has turned out not to be too good for CROW land.

The other side of the argument was that people with land rights ought to have a right of appeal to an independent tribunal where they can put their views forward and where their objections can be independently and objectively assessed in a fair, reasonable and transparent way.

I believe that both those points of view were correct. I had arguments with my friends in the recreational user groups, for example, because it seems to me as a Liberal that not having independent system of appeal was quite wrong. I believe that the government amendments that were agreed on Report go a long way to providing a system that provides both those requirements. I also believe that the amendments that the Government are putting forward today are a further step towards a system which is acceptable and workable. It clearly has to be both.

I listened very carefully to the case that the noble Lord, Lord Pannick, put forward, which was persuasive as usual. His amendment talks about exceptional circumstances. The noble Lord said that it seeks to make the position clear. I do not agree that the words “exceptional circumstances” make the position clear at all, because there is no definition of what these are. He went on to say that it is a “broad and general statement” as to what they would be.

The Government seem to be putting this forward fairly specifically, and I welcome that. The noble Lord referred to four specific criteria. I find myself in a slightly difficult situation at the moment because I am speaking to a government amendment that has not yet been moved by the Government, and I do not wish to do that for them. B, C and D seem to be cases where the decision of the inspector is wrong, for the reasons set out, and that can be clearly established, but decision A, which the noble Lord, Lord Pannick, did not like, seems crucial because it introduces the concept of the public interest, as well as the private interest of the people with interests in the land.

It does what I have been trying to get the Government to do for some time, which they have been resisting in Committee and on Report—to relate the whole question of fair balance, which is the criteria they have got, between the perfectly proper interests of landowners and others with interest in land, the perfectly proper interests of recreational users, and the public interest

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in creating the coastal route. I have been trying to relate that concept of fair balance to the fundamental objectives of the coastal duty, as set out in Clause 289(2), which are the requirements to provide the route and the coastal margin or access land. The Government are now doing that. They are setting the work of the inspector and the decision of the Secretary of State on the basis of the inspector’s report, firmly in the context of the coastal duty. That is right and proper. Some of that is not and cannot be factual. It is a matter of assessment, opinion and judgment. That is where, surely, the Secretary of State ought to have discretion.

The noble and learned Lord, Lord Morris, referred to planning appeals. He is absolutely right. In the ward that I represent on the local council, two or three years ago there was an infamous planning application for a new housing estate, and the decision took about three years. The local council turned it down, it went to appeal, the inspector found in favour of the appellants, it went to the Secretary of State, who at the time was the Deputy Prime Minister, and it sat on his desk for about two years. Eventually, he overturned the decision and recommendation of the inspector. He did it, whether right or wrong, for reasons of overriding public, government and planning policy. Indeed, he did it for reasons which did not exist when the appeal took place. If the amendment proposed by the noble Lord, Lord Goodlad, were to be accepted in its present form, it would leave it wide open for any landowner to seek to wreck the scheme and the coastal route proposals in any particular place. If we have an overriding coastal access duty to provide the route, it ought not to be open to one particular landowner to block one part of the coastline simply because it is not for his personal convenience.

I accept that cases will arise where people are aggrieved about the line of the route and the access land, but under those circumstances there must be an overriding consideration that the route should go through. People cannot be allowed simply to block it because they do not like it, and that is what would happen if we had CROW-type appeals. The Government briefing—again I run the risk of speaking to their amendment before they do—puts forward the case that the Secretary of State must have the right to look at a whole stretch of route and not the particular piece of land that is being appealed, which is what happens in CROW cases. The requirement that there should be consistency when it comes to headlands, estuaries and so on must be right. It cannot be open to objectors in particular places to argue a sui generis case for themselves independent of what happens with the rest of the route. Consistency is important. The idea that one narrow piece of land could be considered on its own and be binding on the Secretary of State is surely wrong. If the movers of the amendment are saying that these would be exceptional circumstances, they ought to propose the much clearer wording set out in the government amendment.

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Facts are facts. Many of the decisions that will have to be made on where the access land should come from and where the route should go will be matters of judgment of the particular circumstances of the case.

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Attempts should be made to reach agreement between the parties, but where it cannot be reached, the overriding consideration should be that the public interest and that of this legislation must prevail. That is not the case in CROW appeals where the vegetation on the land is a matter of fact whether it is mountain, heath, moor or down. Opinions come into it, but the land is either heather or it is not, either crops are being grown on it or it is natural grassland. Factual decisions are much easier to reach, but they will be much more difficult to make on the coast. Therefore I am afraid that the amendment of the noble Lords, Lord Goodlad and Lord Pannick, although probably unintentionally, is a wrecking amendment. I am astonished at how far the Government have been able to go in order to satisfy the case put forward by the various committees on human rights and the constitution, and it is right that they have done so. They have gone 95 per cent of the way and there comes a time when people should say thank you very much rather than try to push for the extra 5 per cent that, in my view, runs the risk of wrecking this great project.

Lord Taylor of Holbeach: My Lords, I thank my noble friend Lord Goodlad for tabling the amendment and for giving us the opportunity to look at this point again. As chairman of the Constitution Committee, he has been extremely effective in pressing this issue. It was good to hear the contributions of noble Lords to this debate, particularly the contribution of my noble friend Lord Montagu of Beaulieu, who has a great interest in the coastal route and a great sensitivity about the way in which it can be constructed.

As I made clear on Report, I share the concerns of my noble friend Lord Goodlad about the possibility that the Secretary of State would be able to ignore the findings of the planning inspectorate and insist that the route be imposed even in contravention of a fair balance. The Government’s amendments in this group go some way towards alleviating my concern. I understand fully their desire to keep some flexibility, in the event a finding was perverse or otherwise fell into the reasons laid out in proposed headings (a), (c) and (d) of Amendment 28. As noble Lords have said, it is the Secretary of State who is ultimately democratically accountable and he must take the final responsibility.

I am still a little worried—and certainly much more worried by the contribution of the noble Lord, Lord Greaves, who seems to have put his own interpretation on the amendments—by proposed heading (a). I understand that the significance of the unfairness should be a contributing factor. A minor breach of fairness is obviously less serious than a major breach and I can appreciate why such a consideration could potentially make for a decision to be ignored. The legislation would be better drafted to make it clear that heading (a) is applicable only when the breach is insignificant or minor.

The Government’s Amendment 29 reassures me a little. Proper transparency will help ensure sensible decision-making but I would not be surprised if my honourable colleagues in another place want to look carefully at these provisions once the Bill arrives there from your Lordships’ House. However, I do not wish

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to sound churlish when the great distance we have travelled on this issue has been a wonderful example of constructive debate. I thank the Minister and his department for moving so far.

Lord Hunt of Kings Heath: My Lords, this has been an interesting and apt debate on which to end our deliberations on the Bill. Although we are disagreeing on the final wording in relation to the review process, we should not underestimate the amount of consensus that has been built. It is very important that, as the Bill leaves the House, we should reflect on that consensus. It has a further journey to travel in another place, where I am sure that our debates here will be reflected upon. No doubt there will be considerable scrutiny there too, particularly in relation to the review process.

I listened with great interest to the comments of the noble Lord, Lord Montagu, and I know he is concerned about damage to the environment. I understand that concern. He made it clear that there is a real challenge for Natural England to ensure that damage does not occur to the environment. I agree that the responsibility on Natural England is weighty indeed. I am sure it will be aided by the significant role that local authorities are to be given, as we have debated in previous stages of the Bill.

I shall deal with Amendment 27 before turning to my amendments. I want to reiterate and assure noble Lords that the Secretary of State would not depart lightly from the recommendations of the appointed person. Section 52 of the 1949 Act requires the Secretary of State, before reaching a determination on whether to approve Natural England’s proposals with modifications, to consult Natural England and such other authorities and persons as he thinks fit. Paragraph 16(3) to (5) of new Schedule 1A gives the Secretary of State power to make provision in regulations about the procedure to be followed where he is minded to approve proposals with modifications other than modifications made in accordance with the recommendation by the appointed person and to apply any provision of Schedule 1A. Any requirement proposed by such regulation is in addition to the duty to consult under Section 52(1). I am happy to give an assurance to the noble Lord, Lord Pannick, that the Government intend to exercise that power so as to provide for consultation before the Secretary of State decides to approve the proposals with modifications other than any recommended by the appointed person.

On the amendment of the noble Lords, Lord Goodlad and Lord Pannick, I, too, reiterate the particular thanks to the committee of the noble Lord, Lord Goodlad, and to the work of the noble Lord, Lord Pannick, in enabling us to come more closely together, even if we have not quite reached agreement yet. However, we have concerns with Amendment 27. First, there is the use of the word “exceptional”. I understand the noble Lord, Lord Goodlad, saying that it was a common-sense approach. Unfortunately, as my noble and learned friend Lord Morris has made clear, when it comes to legislation—indeed, as the Chamber has filled up with noble Lords who are, I am sure, taking a close interest in the Bill, the many of them who are distinguished lawyers will know this—the problem is

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that we do not really know what that word means. It could lead to actual uncertainty and disputes; that is one of our problems here.

Secondly, to preclude the Secretary of State from reaching his own view on where the fair balance lies would be inconsistent with his discretion to approve the proposals, with or without modifications, under the 1949 Act. Thirdly, the amendment would prevent the Secretary of State from achieving consistency of approach relating to Natural England’s proposals as a whole and to any other proposals. I think that was a point that the noble Lord, Lord Greaves, made. It is nice to have the noble Lord on my side, if only, alas, on Third Reading. None the less, it is extremely welcome.

There may well be other parts of the route where similar considerations arise but which have not been the subject of objections. The question would then arise whether the decision of the appointed person relating to an objection to one part of the route constrained the Secretary of State from achieving consistency between that part and others where no objections had been raised, or constrained him to achieve consistency only in the manner of the appointed person’s decision relating to the objection. It would be difficult to require the inspector to consider everything that the Secretary of State takes into account. It would not seem appropriate to require the inspector to consider representations relating to other parts of the route that are not subject to an objection, but those representations might mention considerations relevant to maintaining a consistent approach to the route which is the subject of the report as a whole, or to the whole English coastal route.

I am grateful to noble Lords who have discussed my amendments. Amendment 28 deals with what happens when the appointed person considers a question of fact. It has been produced as a result of discussions that have taken place with noble Lords after the noble Lord, Lord Pannick, made his comments on Report; there have also been helpful discussions since then. The amendment means that where the report of an appointed person on an objection,

would be,

either that it was,

in one of the ways in which a court might find an administrative decision perverse or irrational on judicial review, and set it aside, or else that it,

That latter condition 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. It provides clarification that such an assessment is not to be treated as a simple “finding of fact” for the purpose of this schedule. It would be wholly inappropriate to include provision which constrained the Secretary of State’s discretion in relation to the essential question that he is required to decide—that is, where the fair balance lies—so that he was bound by the decision of

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the appointed person and thereby unable to ensure that the proposals submitted for his approval fit together properly and are broadly consistent in their overall approach and with that taken in any other proposals that he has previously approved. Again, that is a point that the noble Lord, Lord Greaves, commented upon. That would be a recipe for unfairness and legal challenge to the overall result, in circumstances when the legislation had in fact tied the hands of the Secretary of State in relation to any matter that had been the subject of an objection and thus of a decision by the appointed person.

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The conditions in headings (b) to (d) mirror the standard criteria governing the limited circumstances in which a court on judicial review can quash a decision on a finding of fact: that there was insufficient evidence to make it; that it was based on irrelevant considerations or failed to take into account relevant considerations; or that it was otherwise perverse or irrational. Of course, if the Secretary of State himself or herself makes an irrational decision in concluding that the appointed person’s finding of fact was irrational in one of these ways, the Secretary of State would be liable to judicial review.

The noble Lord, Lord Pannick, asked me if the exception in heading (b) means that the appointed person could not properly have made the finding on the evidence available to the appointed person at the time. The answer is yes, that is exactly what it means.

I hope that Amendment 29 further reassures the House. It means that where the Secretary of State does not follow a recommendation on a statement of fact—that is, in the circumstances noted in Amendment 28 that I have just described—the statement of reason required by paragraph 17(4) of Schedule 1A to the 1949 Act must also include the reasons for not following the recommendation. That paragraph relates to the statement of reasons that the Secretary of State must provide for his decision in relation to an objection when making a determination on a coastal access report.

I hope that I can clear up any concern about the Planning Inspectorate. The reason why the Bill does not make a direct reference to inspectors of the Planning Inspectorate is that we would not normally expect to be so specific in the Bill. I readily acknowledge the distinguished record of the Planning Inspectorate, but that inspectorate might alter, disappear or change its name at some time in the future. The current wording of the Bill preserves the ability to change the appointed person in the future if necessary, and it is worth bearing in mind that the Planning Inspectorate is not a body established by statute, so this flexibility is of particular relevance.

There may be cases where the Secretary of State might decide that the most appropriate person to refer objections to is someone other than the Planning Inspectorate. I acknowledge that the current wording gives us flexibility to do this, but, if that were to happen, I am happy to assure noble Lords that we would expect that person to be of similar independence and calibre. The intention, though, is that we would turn to the Planning Inspectorate.

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At the end of the day, there is only a narrow gap between us. The Government have listened carefully, which is why we now have a review procedure. I hope that my amendment provides some reassurance too. The Bill has quite a long way to go, but this is a satisfactory outcome. I am grateful to noble Lords for their contribution.

Lord Goodlad: My Lords, I warmly support government Amendments 28 and 29. I am extremely grateful to the Government for coming as far as they have, and I reiterate my particular thanks to the Minister for his unfailing courtesy during our proceedings in meetings and in correspondence. I hope that during the Bill’s further proceedings in another place, it may be possible to produce further refinements to these proposals to take account of the considerations expressed in this helpful debate, particularly by the noble Lord, Lord Pannick. I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Amendments 28 and 29

Moved by Lord Hunt of Kings Heath

28: Schedule 19, page 302, line 28, at end insert—

“(2A) Where a report required to be considered under sub-paragraph (1)(c) contains a statement of a finding of fact, the Secretary of State in making the determination is bound by that finding unless the Secretary of State is satisfied—

(a) that the finding involves an assessment of the significance of a matter to any person with a relevant interest in land or to the public,

(b) that there was insufficient evidence to make the finding,

(c) that the finding was made by reference to irrelevant factors or without regard to relevant factors, or

(d) that the finding was otherwise perverse or irrational.”

29: Schedule 19, page 303, line 27, at end insert—

“( ) Where the Secretary of State was required under paragraph 16(1)(c) to consider a report and the Secretary of State in making the determination does not follow a recommendation in the report, the statement of reasons required by sub-paragraph (4) must also include the reasons for not following the recommendation.”

Amendments 28 and 29 agreed.

A privilege amendment was made.


Moved by Lord Hunt of Kings Heath

Lord Hunt of Kings Heath: My Lords, it is worth reflecting that we are one week short of six months spent on our deliberations. I had thought that this might have been the longest-running Bill in the history of your Lordships' House. Alas, I am informed that the Animal Health Bill had its First Reading on 13 December 2001 and its Third Reading on 4 November 2002, but, although ours is not the longest-running Bill, my goodness me, we have certainly spent a long time at it.

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