47.  The draft Bill contains no statutory power to compensate occupiers for potential loss of privacy, enjoyment and use of land. This follows the advice given by Natural England to Government in 2007 that there should be a "working presumption against paying compensation for public access along the coast".[73] In its written evidence, Natural England said that compensation should not be necessary because any adverse effects on property owners and land managers from the proposals would be kept to an "absolute minimum", partly because of the negotiations that will take place with owners/occupiers prior to alignment of the route and spreading room. It said that "[L]egal consideration that we and Defra have given to the matter since the submission of our advice in February 2007 reinforces this view […] that compensation should not be payable in respect of the coastal rights created or secured by the Bill."[74] Natural England added in oral evidence, however, that "[…] the subject of compensation is a matter for Government".[75]

48.  Many organisations and individuals submitting evidence believed compensation should be paid in certain circumstances. The CLA provided several examples in its written evidence which it said demonstrated businesses and property owners stood to lose from the proposals (for example, a Cumbrian golf course, and a large coastal holiday house in Cornwall which could suffer an estimated loss of capital value at 10%).[76] The NFU said it understood the general policy of no compensation, but says there were "many examples" where a proposed coastal route would cause "both direct and indirect loss of income or land" and "adequate compensation" would be required in those circumstances".[77] Other witnesses, including the National Trust, Cumbria County Council and the Cumbria Local Access Forum, and Devon County Council, also all said compensation should be payable in certain defined instances.[78] The Ramblers' Association also acknowledged it would "support compensation being paid in the case of demonstrable and significant losses"—although it added that such circumstances were "hard to envisage".[79] The Royal Institution of Chartered Surveyors told us that:

The draft bill does not strike the right balance between rights of access and the rights of owners and occupiers. The RICS believes that insufficient attention is paid to the principle of fair and equitable treatment to landowners and occupiers (in accordance with the Human Rights Act and European Convention on Human Rights) and that more research should be undertaken on the question of compensation. This should include dialogue with the Valuation Office Agency so that business disturbance levels (including farming) can be assessed as well as the impact on capital values of land and property. The RICS believes that further research needs to be undertaken before any decision is taken on compensation.

Another issue which should be taken into account is the impact on farming caused by the introduction of a right to compulsory access. Once more, this will not necessarily be offset by the 'generic' benefits previously mentioned by the government and may impact upon the capital values of land and property (both business and residential).[80]

49.  Defra does acknowledge that some landowners and businesses are likely to be affected financially. In its Impact Assessment of the proposals, it states:

• There are likely to be some residential properties that would command a lower value were public access rights to be created on or across part of the property
• There may be a negative impact on the small number of businesses which derive competitive benefit from availability of exclusive access.

In both cases, Defra said that careful alignment should ensure such impacts were minimised.[81]

50.  Although there are no provisions for compensation in the Draft Bill, it would not be impossible for Natural England to provide some form of ex gratia compensation in particular circumstances outside the express provisions of the Bill, should it wish to do so. Natural England did say in oral evidence that compensation should not "normally" be necessary, but subsequently confirmed it was "not expecting there to be circumstances where our implementation proposals would warrant compensation".[82]

51.  Article 1 of Protocol No. 1 to the European Convention on Human Rights states that the right of every natural or legal person to peaceful enjoyment of their possessions will not "in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest". Assuming that in a particular case the loss of use of land is not considered de facto expropriation—i.e. that it is considered a 'control of use' case—there is no absolute right to compensation. In its written evidence, Defra maintains that providing coastal access would represent "control of use" of private land, and not acquisition.[83]

Our views

52.  Defra and Natural England clearly believe that there is no case for paying compensation merely for a loss of privacy, enjoyment and use of land required for the extension of coastal access. In general we agree.

53.  The CLA told us that it would not be easy to prove a loss of value.[84] But it is conceivable that there may be cases where a person is able clearly to demonstrate a financial loss as a result of the coastal access provisions. We know that Natural England intends to work closely with property owners in order to align the route carefully and sensitively when it seeks a fair balance between the interests of the public and those of owners or occupiers of the land concerned, but it may prove to be impossible to align a route along the coast without causing financial loss to an owner or occupier. In such cases, the lack of a power to give compensation will make it very difficult for Natural England to achieve the fair balance it is required to secure. Natural England may be able offer compensation under its existing powers, but this would be an irregular way of doing things and would be likely to favour those people with access to the most expensive professional advice. Any system of compensation should be transparent and consistent. The Bill should give Natural England the power to offer compensation to owners and occupiers who can demonstrate financial loss as a result of the coastal access provisions where such compensation is necessary to achieve the fair balance between public and private interests that the Bill requires.

74   Ev 3, paras 21-23 Back

75   Q 59 Back

76   Ev 28, paras 4.2-4.3 Back

77   Ev 35, paras 18-19 Back

78   Ev 53, Executive Summary; Ev 91, para 4; Ev 93, para 5. Back

79   Ev 75, para 6.5 Back

80   Ev 170, section 4 Back

81   Draft Marine Bill [Impact Assessment], Defra, April 2008, pp 112 and 119 Back

82   Q 60; Ev 24 (DMB 56c), para 3. Back

83   Ev 106, para 3, Q4 Back

84   Q 148 Back