MR HENRY AUBREY-FLETCHER, MR ANDREW SHIRLEY, MR PAUL TEMPLE, DR ANDREA GRAHAM AND MR BARNEY HOLBECHE

9 JUNE 2008

  Q101 Chairman: I wish everybody good afternoon and welcome to our further evidence session on this Committee's investigation into aspects of the draft Marine Bill, focusing on the coastal access provisions. Can I formally welcome from the Country Land and Business Association Henry Aubrey-Fletcher, who is their President, and Mr Andrew Shirley, their Access Adviser, and from the National Farmers' Union Paul Temple, Vice President, Dr Andrea Graham, their Countryside Adviser and, unusually, appearing as a witness before the Committee, Chief Parliamentary Adviser Mr Barney Holbeche. You are very welcome indeed. You obviously have the best seat in the house now, Barney. We shall expect a star-studded contribution to our inquiry. Last week there was some interesting evidence elicited from Natural England, which certainly has attracted the attention of the CLA, judging by the article in The Times this morning. I am sure that is something that you will want to comment on in more detail but perhaps I could ask both organisations to comment in general terms on the powers which the Bill seeks to confer on Natural England in terms of both creating the route in terms of coastal access and indeed the more controversial issue about spreading room. Mr Aubrey-Fletcher, do you want to start?

  Mr Aubrey-Fletcher: Yes, Chairman. Thank you and thank you for inviting us to give evidence. On the article in The Times, the article I suppose is okay; it is a pity about the comment in the front of The Times that did not seem to recognise that landowners, certainly CLA members, are not against the principle of improved access. We never have been. We can see the advantages of better access both for those members that we have and I am sure all of us who have businesses on the coast who could benefit from increased access, and of course, the more people who access the countryside and see what we do there, the better connection we will have between food and farming.

  Q102  Chairman: You said in general you are not against it but I noticed in paragraph 2.3 of your evidence it says "The Government has not explained why the present state of affairs is unsatisfactory or why it considers it necessary, particularly in view of Defra's current financial difficulties, to incur the expense of introducing a new regime."[16] That is quite a damning critique.

  Mr Aubrey-Fletcher: They are not contrary, I do not think. We would like to see good-quality access that benefits the public. It is the way that it is done that concerns us, and the direction in which Natural England are trying to take it, which is top-down, command and control, rather than the very satisfactory arrangement we have now under the current legislation, which has and does provide improved access. The Southwest Trail is a very good example of that, where negotiation under the Highways Act between local authorities and landowners has led to access where you have consent by all parties and it works very well. It takes time and needs a little money but we think it is a better way of spending money than Natural England's proposals.

  Q103  Chairman: Natural England seem to have taken the view "Trust us, we are a nature organisation. We will get it right." I sense that you do not perhaps think that that is quite what they are going to do.

  Mr Aubrey-Fletcher: We work very closely with Natural England and in partnership with them but ultimately Natural England are not practitioners; they do not manage land. In nature conservation they have strong knowledge but in terms of managing land, and managing access in particular, physically, they do not have to do it. Natural England go home at 4.30 on a Friday, for argument's sake; most people come to the coast for the weekend, and we have to manage that access now, and if there is more access, there will be more to manage. They come back on a Monday morning and we have had the job of coping with the place in the meantime. On the whole, most people who come into the countryside are very responsible but, of course, some are not. We will go on to the detail later but our concern is that if this is too loose and wide, it will be quite difficult for us to manage because there will not be, as we understand it, sufficient money to pay for wardens and people to police the access as proposed.

  Q104  Chairman: Mr Temple, the NFU look a little more enthusiastic about access issues. Is that the reality?

  Mr Temple: I would not say we are not enthusiastic in a similar manner to what Henry has laid out in actually encouraging people to the coastline, to see the coastline, the sea and the land at once, but it is the quality of the visit that we think is important. There are many things that we disagree with in these proposals. When you see the thought process that goes through it, to our minds, it does not recognise the scale of the problems you have to overcome to do this well. It should be about making access a really good experience that is safe, that people can enjoy, that they can actually park. If you look at the actual experience most people take from the coast, 85% of them will spend less than three hours, probably walking a very small and circular route. I think the kind of target we are trying to address is making that a better experience for people rather than trying to railroad something through without understanding the severe implications that there are when you start to look at it on the ground. We have real concerns over the discretionary powers that seem to be given to Natural England in the implementation of this.

  Q105  Chairman: When I was looking at the evidence, something was scratching at the back of my mind. If we go back to the first tranche of agri-environment programmes, there used to be part of them—tell me if I am wrong—where people were effectively given a payment for making access to the countryside, and that was particularly introduced, if I recall correctly, as a way of getting people to be able to access coastal areas. I just wondered what uptake there had been of that all those years ago and whether it was relevant; in other words, there the state had provided a resource in respect of a farmer making a route-way available to get to the coast; here we have a different solution to the same problem.

  Mr Temple: Having seen them on the ground, in terms of the environmental schemes, a really good part of the environmental scheme is to actually have controlled, well-managed access, so that people know what they are doing, it is signposted properly, it is fenced off properly, and it is included in an overall management plan. Unfortunately, this particular proposal is not, to our way of thinking, as well-managed as it should be. Andrea will have the figures as to how much access has been included.

  Dr Graham: I do not have the figures absolutely to hand and we can obviously provide you with that if that is relevant. But I would add, yes, through the countryside stewardship scheme and also through the higher level scheme of environmental stewardship, both of them have access-only agreements or agreements that have access quite heavily featured in them, and they have actually been quite popular and have been very good also in terms of educating the public about accessing the countryside. The reason why they have been so good is because people have been able to go into them on a voluntary basis, it has been locally negotiated with the land managers, landowners and farmers, so that basically, any considerations and implications to the management are taken into account, so it is very locally negotiated. They also generally fit in around the other access that already exists, and so to link-up areas where there is not existing access. It is a good deal for all, and provides money, recompense, for land lost or land taken out of production.

  Q106  Chairman: Have either of your organisations had any discussions with Natural England about how the existing arrangements which you have just very elegantly described will be integrated with their proposal? You could almost see two sets of footpaths immediately arising.

  Mr Shirley: Chairman, from the CLA's position, the answer is that the right of coastal access will lie across the top. The impression we get from Natural England is that this is far more important because it delivers permanent access, and that is why they are enthusiastic about the Bill. What we are saying is that a lot more can be achieved by doing it voluntarily, because not only do you have the access but you would also get environmental improvement. So you get much more than just quick access.

  Mr Temple: The statutory measure does not fit a good experience. Part of it should be what works on this particular area of coastline, what the habitats are that people actually want to see, and how we can get people around. When you see it on the ground, you can see how people have built in additional footpaths through voluntary arrangements to actually give a better circular route or better access or different parking.

  Q107  David Lepper: Mr Temple and Dr Graham partly anticipated what I was going to ask about, which was if we could have some information from both organisations about the kinds of schemes you have been talking about that your members are involved in. Certainly the impression I had last week, I think from Natural England, was that yes, there are some good schemes but there are others of quite variable quality and other schemes available for quite limited periods during the year rather than permanently available. I have not seen any information so far setting out exactly how many of these schemes there are and how they are operating. You did volunteer, Dr Graham, to provide us with some information. Mr Aubrey-Fletcher, if you cannot do it now, and it is understandable that you cannot, perhaps you could let us have some information about that as well.

  Dr Graham: If I could just add to that, certainly with the HLS scheme, which is the new scheme through the environmental stewardship, our understanding is that there will not be any access-only type agreements, and certainly agreements on the coast now will not be continued. Those provisions will over time gradually go out of the system.

  Q108  Chairman: Could we ask you to comment briefly on the proposed changes to the Countryside and Rights of Way Act which enable the Secretary of State to change certain designations of land in the context of coastal access? Barney, you are nodding as if you know all about this.

  Mr Holbeche: I could make a start, Chairman, and perhaps the others will follow on. The view we would take is that the draft Bill is very much enabling in character in some of the provisions relating to coastal access, and we would much prefer that many of these issues are actually dealt with in primary legislation rather than left to Orders to be made by the Minister. I can give you a couple of examples which we will no doubt come on to in more detail in a moment. For example, we are concerned about the lack of mapping. Paul Johnson said last week in evidence to you that in relation to the spreading room maybe there could be a provision for maps if there were uncertainty about where the spreading room was. There is nothing in the Bill that actually delivers that. We would like, for example, to see owners and occupiers at least being able to say to the Secretary of State, "This is uncertain. We ask you to consider making a map for this particular area." The Secretary of State can prescribe areas of land which have coastal margin, he can alter the areas of accepted land so that some of the land affected will be arable land, not only the trail, but we suspect some of the spreading room as well; that seems to be possible as the Bill as drafted, and then there is a whole raft of changes which the Secretary of State can make. There is a very broad provision in the Bill allowing him to change many of the primary legislation provisions in the CROW act in relation to restrictions and exclusions from access. So, for example, the rights of owners and occupiers at the moment to exclude or restrict for up to 28 days or for grouse shooting or for lambing go altogether, and indeed, the remaining provision that the owner or occupier has in relation to applying for land management restrictions or exclusions will be diminished by what is being proposed, not least because it is suggested that you have to get this right when the trail is set up in the first place and then you will be deprived of applying to Natural England for changes later. It seems to us that five years, ten years, maybe five months down the track, those changes may appear and that seems to us to be a pretty severe and unsatisfactory diminishment of the rights of owners and occupiers.

  Mr Aubrey-Fletcher: There is a fundamental difference, obviously, between open access and coastal access. Open access on the whole is not developed countryside. Much of the coast is developed and there are a very large number of businesses on the coast that will potentially be tremendously affected by this proposed extension of coastal access, which you do not have with open access. We have real concerns, obviously, of loss of value both in terms of the value of businesses on the coast and income-earning capacity of many of those businesses if this is put through as proposed by Natural England, without any compensation or any mechanism for identifying loss of income or value from their proposals. I think in many ways using open access as a model works but in that particular respect, because of the difference in the level of development between the two, there is a fundamental difference.

  Q109  David Lepper: Just following on from that really, to Mr Temple and his colleagues firstly, I know that your union is concerned about the four-metre width of the trail and the encroachment on land with crops, et cetera. I think you have said in your evidence to us, among other things, that that could result in substantial loss of income to farmers even though it is described as only a four-metre width of the trail. Could you give us some idea of the likely scale of loss that you think an individual member might incur, or is that difficult?

  Mr Temple: It will come down to the amount of land that is actually affected but if you lose four metres—and many farms are cropped effectively right up to the cliff, for one very simple reason: that these cliffs are constantly eroding. Part of the issue we have with this is that this does not make a lot of sense in terms that in some areas—and I can take you to several but one of them is Holderness up in East Yorkshire—the coast is receding at 20 metres a year. Where do you set this? Where do you keep moving it back? How do you fence it off? That loss of another four metres is another problem. You might have areas where you have a certain established fence, but it is not four metres, so are we going to start moving fencing back to four metres? There are all those issues. If you put that on top of mapping, one of the concerns is how rigid the mapping is going to be, and given that these farmers have to comply with Land Register and single farm payments, it actually affects that element as well.

  Mr Gray: That answer strikes me as being odd. Surely, if the coast is eroding at 20 metres a year—I am very sympathetic to your cause—I can understand your problem where the coast is steady and you would not want to lose four metres, and there is an economically quantifiable loss as a result of that, but if your land is disappearing at the rate of 20 metres a year anyhow, why would you object to having a four metre path across it that is going to disappear into the sea?

  Q110  Chairman: If you are a slow walker ...

  Mr Temple: In fact, that raises the issue that this land is basically unsuitable for attempting to establish coastal access.

  Q111  Mr Gray: That is a different point, of course.

  Dr Graham: If I could add to that, another problem we have where we have cliffs eroding—and we took Natural England out only a couple of weeks ago to see an acre and a half of wheat which had been drilled last winter and is now sitting on the beach, growing. What you actually lose from that is the visual clues on the ground and the visual clues as to where people can walk. As it is, a lot of farmers will leave a few metres at the top of the cliff and it is quite clear to the walker where they can actually walk and where the crop starts and where it finishes.

  Q112  Mr Gray: There is an erosion, which is happening anyhow, there is health and safety for walkers, which is a separate point, but the point I think Mr Lepper was enquiring about was economic loss as a result of the four metres, which is an entirely different matter, is it not?

  Dr Graham: Once you actually lose those visual clues on the ground as to where people can actually walk and where it is obvious that the path is, the problem that then comes is where people actually do walk and where they pick their own route, walking into the crop. They may not necessarily think to go to the first tramline, where it is going to inflict the least degree of damage. That is where we have some uncertainty and, as Paul said, it varies greatly on the value of the crop. A horticultural crop can have a very high value.

  Q113  David Lepper: Obviously, where there is coastal erosion, that is a particular issue, and I think we all understand that, but let us just focus on more stable sections of the coast. What changes would you like to see in Natural England's proposals that you feel might be more acceptable in terms of land that is cultivated?

  Dr Graham: There are a few things which we would obviously like to see within the provision. The first of those would be to formally provide for an appeals process. That is something which is, we feel, very much lacking at the moment and can be overturned by the Secretary of State. Formerly it was covered under section 30 of the CROW Act. That is no longer there. We feel for people to have the fair balance which is set out right at the very start of the provision, they do need to have that appeals process in there. Circumstances, as Barney pointed out, can change over time and they need to be able to come back and readdress that if their farming practice or indeed the landscape changes over time. Dog management is another area that we would like to see a clearer provision for. At the moment it purely says "close control". We feel that is too vague and does not really give any indication. One man's interpretation of "close control" is very different to another's. We would prefer to see something closer to what is within CROW at the moment, which basically encourages that dogs should be on a lead at any time in the vicinity of livestock, as set out in CROW Schedule 2, but with the caveat, which is something we have talked to Natural England about, that they should have signs to encourage dog walkers to let go if they do feel at any time intimidated or threatened by the cattle. That is a subtle difference we would like to have raised. Mapping: again, we feel there should be some provision or mechanism, particularly where a landowner feels there is any degree of doubt whatsoever about where the spreading room is. We feel that walkers and users would also find that beneficial to them, because it allows everybody to know where their liability stands, when they are trespassing, and when they are on land which is covered by the reduced liability. Finally—and there may be other things which my colleagues could add to—is the compensation for damage during the establishment process. At the moment there is compensation but it appears that it is only to safeguard during the actual survey work and mapping work that is carried out. We would argue that carrying heavy materials or machinery across cropped land where there may not already be existing access to the coast is more likely to cause damage to the crops and livestock, and ongoing maintenance work as well. There is no provision for that at the moment and we feel that needs to be in there. Those are four things but my colleagues may wish to add to that.

  Q114  David Lepper: Can I just come in there before they do? You said you have had some discussions on at least some of those issues with Natural England and with Defra. Do you feel that your views are being listened to?

  Dr Graham: I do, yes. We have taken Natural England out to look at some sites on the coast and I think they are listening and have taken the opportunities we have of them.

  Mr Temple: The aspects are being listened to in terms of problems where they exist. The aspect of whether it makes sense to have this complete footpath we do not think they have been listening to.

  Mr Aubrey-Fletcher: I think the difficulty is, as far as the appeal process is concerned, there is not a full understanding of the impact that there is likely to be on some businesses. As you know, no two bits of the coast are the same; different things go on in different parts of the coast and there are different impacts on different businesses in different areas. It is very important when agreement cannot be achieved between the local access forum, the local authority and the landowner that there is an independent process for judging where the fairness lies. What concerns us is that Natural England will get very frustrated by the difficulty of getting a corridor through because one particular business, or whatever it is, is very difficult to avoid, and they will just say, "Okay, the footpath has got to go there and that is that." What we are saying is that needs more thought, it needs an independent mind, to see whether the landowner is pulling the wool or whether Natural England are pushing it further than they should. Obviously, Natural England wants to complete this path because that is what they are charged with doing, and the landowner or the rural or coastal business does not want to be out of pocket as a result of it. It seems to me a classic argument for having an independent appeal process.

  Mr Temple: Again, in the context of the amount of money we are actually talking about, I am led to believe that the CROW Act cost £69 million and there is an annual requirement of £13 million to oversee it. We are only talking about a budget of £50 million over how many years and £5 million a year. Faced with the enormity of the task, you have to ask yourself what you can properly achieve, which is why we keep coming back to this: do things well where you can do them rather than try and spread this so thinly that you do it badly.

  Q115  Dan Rogerson: There is the issue of exemptions for certain types of land. Obviously, there is some disagreement in the evidence that we have received but on the statutory side, the Government are proposing to exempt parks and gardens from this, so it is particularly one, I assume, for the CLA but also perhaps the NFU, and Natural England seems to be taking a different view, albeit saying that they would not require spreading room.

  Mr Aubrey-Fletcher: Originally, as I understood it, Natural England were happy to except parks and gardens, and when they gave you evidence they came up with a different view. I assume they have changed their minds because they have identified areas where they think it would be quite difficult to get a corridor through because there is a business or private property or whatever in the way. Again, that is where you need to look very closely at each particular area on the coast to see if you can find another way through without charging through the back of somebody's garden, reducing the value of that property or whatever. It seems to me very Draconian to do it that way. Is it not better to find a way to avoid the property, which is what they told us they intended to do when the draft Bill came out, rather than run the risk of damaging somebody's income or the value of their property or their privacy, to avoid that property altogether, and this seems to go back on that. That to us is a big worry.

  Mr Shirley: Chairman, from the discussions that Natural England were having in this Committee last week, it seemed also that they wanted to get rid of the 20 metre exclusion. I cannot myself understand why the exclusions set out in the CROW Act as it stands at the moment cannot be applied exactly to the coast as they have. I cannot see why suddenly parks and gardens have been contentious or the 20 metres margin from a building. That might be an agricultural building or it could be stock enclosures. I cannot see any reason to change it at all, apart from to give Natural England far more flexibility in a system where there are not any checks and balances. The outline scheme refers to the balance between business interests and public interests or private interests and public interest, but there is not actually a way of legally challenging that, which there would be in an appeal system. If a route is mapped, you can appeal it, and there is also potentially a claim for compensation, then you are going to make sure you get the scheme right from the beginning, because it is going to be challenged. If there are no checks, you can go for whatever happens to be the easiest scheme that you can devise. The cheapest and easiest is not always the best.

  Q116  Dan Rogerson: So you think even if they are not necessarily planning on using it a great deal, it is something they would like to have in their toolbox in case they need it at some point in the future?

  Mr Shirley: No, I felt slightly misled by Natural England. We have been told it would not include parks and gardens. If they need the right to go across parks and gardens, or indeed any other excluded land, they have powers under section 25 and 26, I think, of the Highways Act, which in fact they can do anywhere. To argue that there is a park there that you cannot go through is incorrect; they do have the powers and they can use them as they currently are. The only difference is, of course, with coastal access they can force it through free and any expense is the landowner's to foot.

  Mr Holbeche: The NFU entirely agrees with that, Chairman. We think Defra are right—not something I say that often—we think Natural England are wrong, and it should be changed.

  Q117  Dan Rogerson: The situation with regard to beaches: as an MP for a coastal area, I know that there are beaches and beaches, and different patterns of usage on them, and so on, and different historical circumstances around them. What discussions have you had with Defra or Natural England about that issue?

  Mr Aubrey-Fletcher: The original discussions that I had before they came down with the NFU to look at some of these issues was that they would not wish to compromise the business and they would expect the local authority, working with the landowner, to try and find a corridor that would not compromise the business, and if there was a private beach there, they would go round the beach rather than kill off a business—no doubt that person has borrowed money to develop the business and suddenly it is worth nothing because the beach is open. Patently, that is unfair, and I would hope that that would still be the case, that in each case they looked at where a business was likely to be affected or the value of a private property compromised as a result of the coastal access, they would endeavour to avoid that problem. We accept that there may be occasions where it is impossible to get through because there is a darn great cliff in the way or something and therefore an arrangement has to be found where the owner of the business is not compromised and the public can have their corridor, and if that means an element of compensation, that seems to me perfectly fair. You have it in every other walk of life: cables over land, roads, tracks. There is a tenet in English law that loss of value for public benefit should be compensated but, for some reason or other, we have a mental blockage when it comes to compensation for loss of value, proven loss of value, on rural businesses and private property on the coast.

  Q118  Dan Rogerson: I am certainly familiar with cases where certain beaches become attractive for parties and whatever, and it is very expensive for anyone who is involved to maintain and keep up, which is a different issue perhaps, although I think it is perhaps connected. Do you think the idea of temporary restrictions has any value, that there could be some slightly different form of access, whether it be restricted through time of day or whatever?

  Mr Shirley: Yes, I think temporary restrictions are important, because if you are looking at beaches, the main time when you might want to have control is in the summer as far as public access goes. Private beaches are obviously quite a big discussion point. There are different sorts of private beaches. The majority of beaches are open for commercial business—Blackpool Sands, for example, in Devon. There are many more where the landowner manages the beach; he makes money from the beach which he can plough back into keeping it clean and tidy. I think it is important that you have the ability to remove people from beaches who are not necessarily doing anything illegal, because then the police would come deal with it, but people who are being anti-social, because what you are trying to do is manage a visitor destination. A lot of these beaches have Blue Flag awards and therefore they do not want dogs fouling on them. So there needs to be the ability to restrict and sometimes prevent the public. There are a lot of beaches that are not normally open to the public, that perhaps people use for filming, and if you cannot give a filming crew exclusive occupation of a small stretch of beach, you may not be able to do the filming and therefore there is a direct loss of income from that.

  Mr Temple: I would suggest that the voluntary approach is always the best way to do this, in hand with understanding planning issues, because if you are going to have access, you are going to have to get people in and out, you are going to have to park cars, people are going to want public conveniences or somewhere to have a cup of tea. So really you need to have full engagement in the whole process to do the job properly, and that has to include planning. What really surprised me—and I have visited more coastline than ever before—is in very short stretches you see so many problems that will take so much time to sort out when you do it in one "you have got to do it" approach, whereas if you do it with the voluntary approach, you can put the maximum amount of effort in and get the best result out of it on all sides because it has been done with a willingness to create a good experience.

  Dan Rogerson: I have to say I was at the station and saw a couple of young lads asking for directions to Polzeath, with a great big stack of beer and I thought "Oh, it's the summer again."

  Q119  Chairman: I would like to move on to probe clause 273 in the Bill. For the benefit of this session I will read out part of the clause, which says in the third paragraph "the Secretary of State must aim 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." The NFU in their evidence said that this statement must be supported by adequate provision within the Bill in order to be meaningful. I wonder if by any chance the NFU could tell us whether you have made representations to Defra on this about the inclusion of your pledge in there and what kind of a reaction you have had.

  Dr Graham: We have not made a direct representation to Defra on this.

  Mr Temple: What we have asked is for Natural England to actually explain to us what they think it will do to cost this job properly. One of my real desires is to take a stretch of what I would call difficult coastline, including estuaries, and see what it actually costs, what the problems are, what the implications are for the local authorities, because they get left out of this equation and they might end up being drawn into it, and then see what it properly costs over a certain stretch and then we can see what kind of funding is needed to do this job properly. If you take basic fencing, it costs £4.50 a metre, and you can soon see how things add up. What was a real surprise to me was that in Essex, depending on where you take the line, you could have 350 miles of coastline.

  Mr Holbeche: If I could just add to that, Chairman, we will be making this point to Defra in response to their consultation, which closes on 26 June. Our concern was that although the phrase in the draft Bill "aim to strike a fair balance between the interests of the public and the interests of persons with interest in land" sounds good, how do you actually measure it in practice? How do you actually deliver it? In practice, we suspect that in fact most farmers and landowners will be reasonable. We expect that Natural England will be reasonable most of the time on most of these things, but we are here laying down the law of the land; we are creating legislation and, as we know, it is always the hard cases that you have to take account of. There is a lot in Natural England's document about not interfering with the operational needs of businesses, trying to proceed in such a way that coastal businesses suffer no significant loss of income. At the end of the day, the application of the fair balance duty may well result in Natural England saying "We have bent over backwards to offer fair balance in this case. Unfortunately, some landowners or other businesses have been hurt by this but we have discharged our statutory duty." That leaves those particular individuals and businesses in a very difficult position, and we think the Bill could be strengthened in such a way as to improve that balance. Last week Paul Johnson said to you, "This is not a consensus regime but a highly consultative one." Actually, that means Natural England largely has the whip hand in a way which it does not have under CROW, where the balance between the access authorities and the owners and occupiers is much fairer.

  Mr Aubrey-Fletcher: Putting that very succinctly, I would say the landowner's role is to provide access to their land for nothing and the state's role is to cover the costs of that access. That is the fair way of doing it.