Committee (11th Day) (Continued)

Marine and Coastal Access Bill [HL] – in the House of Lords at 8:12 pm on 21st April 2009.

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Amendment A337A

Moved by Lord Taylor of Holbeach

A337A: Clause 292, page 179, line 33, leave out "take reasonable steps to"

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions 8:35 pm, 21st April 2009

As I mentioned before the break, my amendments in this group strengthen slightly the consultation requirements on Natural England when preparing its report. My first two amendments probe the consultation with those with a relevant interest in the land. We have talked about the definition of that. Given the rather tighter definition of relevant interest that the Government insist on in the Bill, as opposed to the CROW Act, the number of consultees will not necessarily be as high. I should like some assurances that Natural England will do all that it can to seek out the views of those who are not large landowners or are not plugged into national or even local organisations so that they are involved in the development of the legislation. They may not even know about the development of this route and will certainly not know that they need to keep an eye out for what is proposed by Natural England.

National and local organisations will also be important. The briefings that Peers on all sides have received from some of them show how useful they can be in identifying the concerns of both potential users and those who will be affected. To ignore them would be a big mistake. My third amendment would ensure that they, too, are consulted properly during the preparatory stages. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative

My Amendment 338A is in this group. In page 179, line 42, it would leave out paragraph (e). It is a probing amendment. My noble friend talked earlier about the whole question of the MoD and MoD land and the possibility of access land. The reason for my amendment is to ask the Minister how Natural England will know what available land falls within the national security category. It is also linked with new Section 55D(6)(b). Will Natural England be able to explain any exclusions or restrictions resulting from defence or national security considerations? If not, what price openness and transparency? Between the two provisions, it seems that any military land that may be used or opened up for access could in the first instance not to be known to Natural England. I suspect that it would be known to local authorities, but it does not say that in the Bill; it just refers to Natural England and the Secretary of State. That is the reason for my first amendment.

My name is linked to the second amendment tabled by the noble Baroness, Lady Mallalieu, which concerns Statutory Instrument 1993/12. The list in that statutory instrument works well at present. It is simple; it is well known to everybody; it has 10 people to consult in all. They are: the Auto Cycle Union, the British Horse Society, the Byways and Bridleways Trust, the Open Spaces Society, the Ramblers' Association, the British Driving Society, the Cyclist Touring Club, the Peak and Northern Footpaths Society, the Chiltern Society and the Welsh Trail Riders Association. It seems odd, if something is working well, that it will not be included. I am happy to support that amendment as well.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

I am grateful to the noble Lords who have spoken on this amendment. We have had some discussion about these issues on the previous amendments. There is a requirement on Natural England to consult various relevant bodies before drawing up the report, in addition to the persons already included in Section 51(4) of the 1949 Act, which include the national park authority, joint planning board, county council and county district through whose park or area the route may pass. So I would be surprised, as I think the noble Baroness, Lady Byford, perhaps partially conceded, if people were not aware of the issue of the coastal path—certainly as far as these representative organisations are concerned. I do not see how Natural England could be in any position other than being fully appraised of local considerations in those matters. We have the key local bodies listed.

The problem with Amendments A337A and A338, proposed by the noble Lord, Lord Taylor, is that, rather than having to take reasonable steps to consult and notify persons with a relevant interest in affected land, Natural England would be required to consult all such persons in preparing its report. Now who are these persons? We do not have, in England, a land register, so we might be imposing on Natural England a task which is actually an impossible burden. If we say "all" in the legislation—all land interests—then the body would be open to challenge if it failed in any respect with regard to a part of the coastal path. That is not just an onerous task: it is a burden which Natural England could not accept and carry out, even in the best possible faith, because of the problem of identification. What we will do is provide regulations requiring Natural England to give those with a relevant interest an opportunity to make representations on its report once it has prepared one. That is certainly our intention.

Amendments A338ZA and A340, along with Amendment A339, proposed by the noble Baroness, Lady Mallalieu, the noble Baroness, Lady Byford, the noble Lord, Lord Dear, and the noble Baroness, Lady Masham, seek to insert other bodies into the list, including charities and organisations set out in Schedule 6 to the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993. Amendment A338A would remove the requirement to consult the Secretary of State on defence and national security interests. I do not think we could accept that proposition. The MoD owns quite a lot of land which is close to the coast, and surely it is right and appropriate for Natural England to consult the ministry when drawing up its report. There are significant problems with that land, as the noble Baroness, Lady Byford, identified. I am thinking of the Dorset position, for example. Those are the issues that apply with regard to restrictions. We would obviously expect the Secretary of State for Defence to be consulted about these matters.

The organisations listed in Schedule 6 will have an opportunity to make representations on the report when it is completed but I do not think that we could require Natural England to consult them at the initial stage. If Natural England considers that such bodies have particular knowledge or that they can make a particular input at the initial stage, I am sure it will recognise that it is in its interests to consult them. However, that is different from making the issues mandatory in the Bill. I am not seeking to decry the significance of these organisations, nor am I saying that the likelihood is that their interests will be ignored. However, there is a difference between Natural England seeking to consult them about the report, when published, and being obliged to do so in the Bill at the initial stage.

I recognise the significance of anyone with an interest in land, and I very much appreciate the argument put forward by the noble Lord, Lord Taylor. However, we cannot put an obligation on Natural England which it cannot be guaranteed to fulfil, and I do not consider that it would be able to meet the requirement suggested in the amendment.

I turn to the consultation list to which the noble Baroness, Lady Byford, referred and the list that she read out. These bodies can make their issues known to Natural England during consultation, but she will recognise that that list is derived from legislation which sought to achieve other, although related, objectives. There is nothing to stop these bodies making their views known to Natural England, as they will no doubt do, and there is nothing to stop them making representations, which will be summarised by Natural England and put before the Secretary of State. However, that is a little different from translating a list of organisations from one piece of legislation where they were listed because of the nature of that legislation.

Natural England has been working with Defence Estates on issues of appropriate access. In the concept of this coastal path, questions must be asked of landowners and the Ministry of Defence is significant in that respect. It is right that questions are asked about access which may, in the view of noble Lords, have been particularly restrictive in the past, although I have no doubt that my colleagues at the Ministry of Defence would emphasise the extent to which they have sought to minimise restrictions on the public. Natural England has been working with Defence Estates to clarify the question of defence land being available for the coastal path as far as possible. There may just be circumstances where it is not possible, but Natural England is already considering that matter because we recognise the strength of the noble Baroness's case.

Photo of Baroness Byford Baroness Byford Conservative 8:45 pm, 21st April 2009

I thank the Minister for giving way. It is clearly a practical problem: some of the information is very sensitive and obviously should not be in the public domain. However, if there is to be a coastal route, surely people will ask why it does or does not go across particular areas, and that is why I raised that.

On the other issue, the trouble is that, once you have a list of those whom Natural England must consult, it becomes clear that there are those who are not included. Indeed, the amendment of the noble Baroness, Lady Mallalieu, to which my name is added, clearly reflects that they are not included. I accept that this is always a difficult matter but I gather that there are only 10 people in all. It would have been a fairly simple task, involving, I believe, about seven letters, but it would have been worth doing. I heard what the Minister said but it is on the first point that I am sensitive to the difficulties that the Government face. Clearly, it does not matter if some of this information is in the public domain but with some of it, it obviously does.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

I am grateful to the noble Baroness because none of us can envisage the concept of the coastal path without appreciating that it does involve defence land. The question is how those conflicting issues can be resolved and, of course, some of them are very sensitive indeed. I wish to reassure all noble Lords that Natural England knows this to be a challenge and has already begun work.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

I thank the Minister for his response. To some extent I can understand his reluctance to see a requirement in the Bill, but planning law and compulsory purchase law are full of obligations on public bodies to make contact with people who are affected, even if it is putting notices on telegraph poles to make them aware of what is going on. The principle behind my amendments is that it is important that we involve all the parties at the earliest possible stage. Getting people involved makes it so much easier and avoids differences of opinion after the event. It is far better to have the advice, help, assistance and guidance of interested parties at the earliest stage. I note what the Minister says and I am particularly interested in what he had to say about defence land. There are other key installation sites which are coastally situated which, I am sure, also have a bearing on all this, but, at this stage, I beg leave to withdraw my amendment.

Amendment A337A withdrawn.

Amendments A338 to A341 not moved.

Amendment A342

Moved by Lord Greaves

A342: Clause 292, page 180, line 29, leave out "may" and insert "shall"

Photo of Lord Greaves Lord Greaves Spokesperson for Environment, Food and Rural Affairs, Spokesperson for Communities and Local Government

We are here talking about what happens when the final report is sent out. In moving Amendment A342, I shall speak also to many more in this group, which also contains a government amendment and various Conservative amendments. This is really about who is consulted when Natural England produces what I think it calls a "final report" for a particular piece of coast, after it has done all its work, and presented its proposals to the Secretary of State. The amendments in this group amount to the mother of all lists. Amendment A342, however, is slightly different. The Bill says that the Secretary of State "may" make regulations in relation to the consultation processes. We are saying that the Secretary of State "shall" make regulations in relation to the consultation processes. No doubt these regulations are going to be made and therefore there is no reason why the regulation should not describe what "shall" happen and not what "may" happen. Amendment A343A is the first of a number of amendments that add to the list of organisations and persons who, when a report is sent to the Secretary of State, have to be consulted and given the opportunity to make representations to Natural England and then on to the Secretary of State. This is an important group. Amendment A343A refers to,

"any other principal local authority whose area includes the whole or part of the area to which the report relates ... a parish council or parish meeting", which is in a similar position.

This provision is important not just because these elected local bodies ought to be consulted, informed about what has happened and given the opportunity to make representations. Principal local authorities, whether they are counties, districts, unitaries or anything else, and parish councils are, in their own right, recreation and leisure authorities. Not to consult them on a major recreation and leisure facility being proposed in their area would be wrong. Many of them are also planning authorities and, again, not to consult them on a major change in land use in their area would be wrong. So they should be included. However many others should or should not be included, principal local authorities and parish councils should be—not just access authorities which have direct responsibility for access provision.

Amendment A344 is a consequential amendment. Amendment A345, tabled by my noble friend Lord Tyler, is about the Youth Hostels Association. Amendment A346 lists,

"the British Association of Shooting and Conservation ... the British Mountaineering Council ... the Country Land and Business Association ... the National Farmers' Union ... the Open Spaces Society, and ... the Ramblers' Association", which are in CROW legislation. We suggest that they should be listed here too.

Amendment A349 concerns,

"charities or organisations which would be affected by the regulations".

Amendment A349A, which refers to,

"any person or body that Natural England considers to have a reasonable interest in the matter", concerns flexibility, not the rigidity of which we were accused as regards the last amendment before the dinner break. Amendment A349B refers to "any resident". Clearly, residents do not have to be written to individually, but there are plenty of ways to advertise so that residents know what is going on. Amendment A349C refers to,

"any other body or person".

Anyone who feels that they wish to contribute should be able to do so and Natural England should have to consider their comments. Some of these amendments clearly are probing in the sense that they overlap.

Amendments A352 and A358 simply are further references to charities and are consequential on the first reference to them. I do not think that I have to explain any further why these organisations and bodies should be consulted. Their names and positions make that self evident. I beg to move.

Photo of Lord Judd Lord Judd Labour

If we were in another sort of organisation other than being part of the formal political system in the House of Lords, there might be an arrangement whereby my amendment could be put to the noble Lord, Lord Greaves, who I think probably would say that he warmly accepted it, but that is not how we operate. I simply want to make one point and, in doing so, I should emphasise that in an honorary capacity I have the privilege of being a vice-president of the Campaign for National Parks and a president of the Friends of the Lake District, which represents CPRE in the whole of Cumbria. If we are going to ensure that those organisations, which have been so well listed in Amendment A346, are consulted, these two bodies really ought to be included, whatever has or has not been the case in existing legislation. Both of them do sterling work in the interests of preserving the countryside and making it accessible to the public, and both are based on a range of locally based societies that draw together people in the community who have a sense of responsibility towards these areas. Both show a great deal of imagination in carrying forward the work day after day throughout the year, and I argue simply that if there is to be a list—there is a great deal to be said for having a list of this kind—it would be odd if these two organisations were not included.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions 9:00 pm, 21st April 2009

To some extent, we rehearsed this argument in our debate on the previous set of amendments. Indeed, my Amendments A350B and A351A to A351C relate to the efforts that the Secretary of State must make to notify relevant people about the final result of the report. To the extent that they do so, they probe how far the Government intend the consultations to go. As I suggested in our debate on the amendments dealing with consulting those with a relevant interest, merely putting up a notice in a local authority office and expecting people to know how to check it might not be sufficient. Similarly, I cannot imagine a circumstance in which it would not be appropriate for the Secretary of State to publish his determination in a way that brings it to people's attention.

Amendment A351D, like Amendment A352 in the name of the noble Lord, Lord Tyler, again suggests that relevant charities and organisations should be considered to have a relevant interest. In general, it seems sensible to take as many views from as many relevant people as possible. As we have said, charities and similar organisations could have valuable knowledge of problems that might arise.

The number of amendments tabled that would add various bodies to the list in new Section 55E(2) shows the Committee's concern that this list is not exclusionary. I hope the Minister will be able to confirm that representations will be read from anyone who might be interested. If a representation is clearly spurious or irrelevant, Natural England just needs to note that in its response.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

I entirely agree with the latter point made by the noble Lord, Lord Taylor.

I shall deal first with Amendment A342 and the question of whether the Secretary of State has the discretion to make such regulations. I assure the noble Lord, Lord Greaves, that the Secretary of State has every intention of making such regulations and for those regulations to be in place before the process of implementing the route begins. It is a "may/must", "shall/will" argument. There is no problem with the use of "may", but I hope that I have given the necessary assurance from the Dispatch Box on that matter.

I will come to Amendments A343A, A344 to A346, A349 and A349A in a moment. Amendment A352 would add charities or organisations to the list of relevant interested bodies that must be notified of the Secretary of State's determinations under new Section 55E(6). Amendment A358 would add a definition of a charity. Amendment A347, in the name of my noble friend Lord Judd, would add two organisations to the list of those to be consulted before the report is drawn up.

As a general statement of intent, the provisions in the Bill are designed to provide a procedure that ensures that Natural England will consult a range of local interests before preparing a report on any proposed coastal route. The list of those who can make representations to Natural England on the coastal access report is limited to those who have a particular interest or role to play in the context of the area that will be affected. We have not listed non-governmental organisations as statutory consultees in any area of the Bill. Such lists quickly become out of date as the bodies to be consulted change over time, and amending primary legislation is not straightforward, as we all know. Moreover, there is always the problem that a list can be perceived as exclusive and capable of setting some stakeholders higher than others in influence. However, I hope that I can assure noble Lords that Natural England's intentions are to consult as widely as possible. The Bill provides for regulations to be made specifying how its draft report is to be published and the manner in which representations may be made.

On Amendment A346, spoken to by the noble Lord, Lord Greaves, and the listing of bodies, those bodies are set out in a number of regulations made under the CROW Act but are not listed in the Act itself. It is worth pointing out the bodies that must be consulted by Natural England before it prepares its report for the Secretary of State. I refer to Section 51(4) of the 1949 Act, which makes it clear that before preparing a report, Natural England must consult every national park authority, joint planning board and county district council through whose park or area the route passes. In addition, new Section 55D(4) requires Natural England to take a number of steps and to consult a number of bodies. That, I think, meets noble Lords' requirements for wide consultation.

I understand the point made by the noble Lord, Lord Greaves, about parish councils, but the point is that they have no direct responsibilities for access. However, although they are not listed, they will have an opportunity to comment if they wish. Indeed, that reflects the point raised by the noble Lord, Lord Taylor, about people and organisations which may not be listed anywhere but nevertheless still have a legitimate right to make representations. I would have thought that parish councils fall within that category.

Amendment A350ZZA would require a provision that regulations may be made that include a requirement that representations should be made on the question of whether Natural England's report fulfils the requirements of its coastal access duty in Sections 286 and 287. The Secretary of State will make a determination of Natural England's report, and the fulfilment of these duties will be the principal issue that he has to consider.

Amendment A350B would require the Secretary of State to notify persons with a relevant interest in affected land of his determination of Natural England's report. I want to assure the noble Lord that the Secretary of State will do all he can to notify such persons. I understand and accept the point he raises, but it is unrealistic to expect him to notify everyone, and in certain circumstances it may be impossible to trace the owner of the land and thus fulfil his duty. However, we will ensure that every effort is made.

Amendments A351A to A351C propose changes to the way in which the Secretary of State might publish his determination. I believe that the current provisions provide some flexibility for the Secretary of State and, in the circumstances, are appropriate. Any charity would already be notified if it was the owner of affected land, and I do not consider a change such as that proposed in A351D to be required. However, I understand that the point of these amendments is to ensure that the consultation process is as wide as possible; that Natural England takes account of all the views expressed; and that it makes every effort to engage with consultees and establish communications with persons with relevant interests. I understand that some of it is to do with the wording of the Bill, but it is also to do with the practice of Natural England. I can assure noble Lords that the sentiment behind these amendments will be drawn to Natural England's attention. As I said, the Secretary of State, in making a determination on these duties, will have regard to the question of whether representations have been made and the way in which Natural England has dealt with them.

Photo of Lord Judd Lord Judd Labour

I do not think that anyone could question the good faith of my noble friend or his colleagues in government on this matter. However, I draw his attention to one point. He emphasised that under existing arrangements, the national park authorities should be consulted. My point was that the Campaign for National Parks, made up of voluntary bodies throughout the country, each one based in the area of a particular national park, and the Campaign to Protect Rural England, with its locally based activities, are not the same as the statutory body. They are much more akin to the organisations listed by the noble Lord, Lord Greaves, in his amendment. I simply ask my noble friend, if he is looking at how this might be covered in regulations, to take my point.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

Concerning the voluntary organisations which might be affected, there is quite a different tack needed for permanent campsites for the Scouts, Guides and youth clubs. They simply would not be able to operate if the public was passing quite close. This is a big issue nowadays in those organisations and one would have to make sure they were happy about the arrangements.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

I wish noble Lords could have been present when we met organisations with an interest in this Bill. It is so long ago, I cannot remember when it was. The conference room at Defra was full. I do not know if the Scouts or similar organisations were present, but they have a perfectly legitimate interest in these matters. When they make representations or respond to consultation documents, I am sure they will be listened to carefully. We are always reluctant to have lists, particularly in primary legislation, because they set in stone an organisation which may no longer be relevant in the future. We simply need more flexibility. That is the reason for the Government's response, not because I do not think organisations like the Scouts have a perfectly sensible and important view to express.

Photo of Lord Greaves Lord Greaves Spokesperson for Environment, Food and Rural Affairs, Spokesperson for Communities and Local Government

I am grateful again for the Minister's care in responding to these amendments. In a sense we are back to the old argument that we do not have to have things in primary legislation because we have a Government and organisations such as Natural England which are full of nice people who do the right things and therefore it does not actually matter what is in the legislation. I have an old-fashioned view that it does matter because at some point the people running these things may not be quite as nice as they are now, or they may change their intentions. If we believe that something should happen, we should put it in legislation so that it has to happen. The Government think that they are going to be in power for ever.

Then we have the other argument that it does not matter whether it says "must" or "may". We want it to say "may" but we are going to act as if it says "must". I have another old-fashioned view, which is that legislation should actually say what will happen and not something different. However, I am told that these things are old-fashioned.

I accept that some of the lists that I have proposed may not be appropriate in primary legislation. We had this argument nine years ago on CROW, when we were promised that, although the lists were not appropriate in primary legislation, they would be put in secondary legislation. Therefore, I do not understand why the Government are resisting doing that in this case, as this is simply an extension of CROW. I ask the Government to think about what kind of secondary legislation, which is much easier to change when organisations change, they would consider under this Bill as well as under CROW.

I was interested in what the Minister said about local authorities. I will follow his references to the 1949 legislation and check whether what he is saying is right. If it is right, that is fine as far as principal authorities are concerned, but I am sorry that he is resisting having something in the Bill about parish councils. Perhaps the 1949 Act should be amended to include parish councils. I think that what he quoted from the 1949 Act was about long-distance routes generally and not just about the coastal route, so the reference might not be appropriate in this Bill. I am not sure how we should deal with that.

Parish councils have responsibilities in relation to rights of way, although I accept that the coastal route will not all be a right of way. Parish councils are, however, recreation and leisure authorities and often provide local amenities, so they will be able to make a real contribution to the new coastal route. For example, they may provide and run such local facilities as public lavatories and car parks. They also all have notice boards and might make a contribution in that way. If parish councils are brought in as what people nowadays call partners, they will have in many areas something important and significant to contribute at a local level. They ought to be consultees right from the start. However, I will think again about where we should refer to them.

I hope that the Government will not resist this. I have got used to batting on behalf of parish councils on CLG legislation and I find that, whenever I do, I am knocking at an open door. I hope that the door might also be open as far as Defra is concerned. I beg leave to withdraw the amendment.

Amendment A342 withdrawn.

Amendment A343

Moved by Lord Goodlad

A343: Clause 292, page 180, leave out lines 34 to 45

Photo of Lord Goodlad Lord Goodlad Conservative 9:15 pm, 21st April 2009

I shall also speak to Amendments A350 and A354 in my name and the names of the noble Lord, Lord Pannick, and my noble friend Lord Taylor. This group of amendments is about the right of appeal, or the non-right of appeal. The House of Commons Select Committee on the Environment, Food and Rural Affairs concluded in July 2008:

"The lack of a formal appeal process is a fundamental weakness of the Bill. As it stands, Defra and Natural England have control of the whole process from policy development to implementation on the ground. Neither organisation has provided us with a convincing explanation why there cannot be a proper third-party appeal process as well as a requirement for consultation with landowners and occupiers. We consider the right of landowners and occupiers to have an independent, third-party appeal process to be an important element of the fair balance between public and private interests that the Government is aiming to achieve. The Bill should provide for such a process".

The pre-legislative scrutiny Joint Committee on the draft marine Bill reached a similar conclusion in its July 2008 report. It said:

"The Bill contains no mechanism for appeal against decisions by the Secretary of State to designate land as coastal margin. The ... appeals mechanism", under the Countryside and Rights of Way Act 2000 regarding mapping of open country and registered common land to which the public have access,

"will not apply as there is no mapping process and Defra has confirmed that the Secretary of State intends to use powers in the Bill to disapply the CROW appeals mechanism for exclusions and restrictions. Under the draft Bill, the Secretary of State may by regulation make provision for interested persons or organisations 'to be given an opportunity to make representations to Natural England about matters which relate to coastal access reports and are of a kind specified in the regulations'".

Evidence from the Country Land and Business Association and the National Farmers' Union strongly argues for the need for an independent appeals mechanism. Other witnesses supported the need for an independent appeals mechanism as exists in CROW and other access legislation, such as the Highways Act 1980. The only legal redress for dissatisfied owners and occupiers in the absence of such an appeals mechanism will be judicial review. The representations process in the Bill does not provide for any third party consideration or independent appeals process. Even the CROW appeals mechanism would not provide this if applied in its current form to the coastal access provisions as the Secretary of State would be both designating land, including exclusions and restrictions, and then deciding an appeal on that designation. Noble Lords will wish to ensure that costly recourse to judicial review is not the only option to challenge the alignment, spreading room and exclusions and restrictions which should be subject to appeals mechanisms.

On 18 December 2008, your Lordships' Select Committee on the Constitution reported to the House on the Bill. The committee opined that rights of appeal against administrative decisions of public authorities are an important aspect of the relationship between the citizen and the state. There can be no argument about that. Without effective appeal procedures, the citizen cannot easily challenge the lawfulness or merits of a determination. In situations where legislation fails to provide for an appeals system, the remedy of launching judicial review proceedings in the High Court—you could not make it up if it were not in the Bill—is for most citizens more of a theoretical possibility than a realistic means of seeking redress for an allegedly unlawful decision. High legal costs, the prospect of being ordered to pay the other side's costs if the claim fails and the length of time it takes for the claims to be heard are completely unrealistic barriers for ordinary people to the use of the judicial review procedure. The grounds of challenge on judicial review claims are limited to questions of law. It is rarely possible to raise disputes about facts or the merits of the public authority's decision. As a matter of constitutional principle, therefore, rights of appeal should be created.

The range of powers contained in this Bill to require coastal landowners to permit public access to their property ought, in your Lordships' committee's opinion, to be accompanied by a right of appeal to an independent body. The possibility of making a claim for judicial review in the High Court is neither a proportionate nor a realistic option for the vast majority of ordinary people in this country.

Your Lordships' committee is not persuaded by the reasons advanced by the Government for not including any appeal procedures in the Bill. It is said that few appeals will be successful, and that the experience of the appeals system under Part I of the Countryside and Rights of Way Act 2000 is that appeals were disproportionate, lengthy and expensive. Predictions of the outcome of appeals are not, I suspect your Lordships will agree, a sound argument against the creation of an appeals system. Indeed, we would be concerned if an appeals system led to a large proportion of successful challenges, as that would indicate that there was something badly wrong with the administration of the system or the terms in which the legislation was framed. In the absence of such an appeals system, stakeholders, or those who can afford to do so, would have to resort to judicial review proceedings in the High Court, which are neither cheap nor quick. It is in the Government's hands to recommend an appeals system that seeks to minimise both the time taken and the costs involved in allowing citizens to question the judgments of Natural England and the Secretary of State.

There is no suggestion of, or support for, slow and extravagantly costly appeal processes. A measured response in relation to the coastal access duty would be to attempt to create a better appeals system rather than to exclude one altogether.

The Government's second reason for rejecting an appeals system is that there will be a consultation, and landowners would have a right to make representations before the line of route was determined by the Secretary of State. This appears to conflate two different steps in the decision-making process. The principles of procedural propriety, otherwise known as natural justice, require that landowners be consulted and are given opportunities to make representations before a final decision is made. Such a right is given express recognition in the Bill. This right exists as a matter of common law, whether or not spelt out in legislation, in relation to many if not most types of decision-making by public authorities.

The right, however, is separate from the question of whether a citizen should have a means of challenging the final decision after it has been made. The grounds of appeal might be that the decision-maker did not properly understand, or failed to give appropriate weight to, the matters on which representations had been made earlier in the process. The duty to strike a fair balance between different interests applies not only to the substance of the coastal access scheme but also to the procedures adopted in reaching decisions. No decision-making process in the Bill allows appeals by individuals. A balance must be struck between citizen and state in the context of the Bill. The Bill must be amended. I beg to move.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Labour

I advise the Committee that, if the amendment is agreed to, I cannot call Amendments A343A to A349C by reason of pre-emption.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

This group of amendments offers a bewildering array of alternative versions of much the same thing; indeed, I have my name to the trio of amendments spoken to by my noble friend Lord Goodlad. This is not surprising. The loss of control over a landowner's private property is clearly significant. The extensive and extremely detailed consultation and representation requirements that we have just ploughed our way through are, of course, extremely welcome, and will be very useful in improving buy-in to the scheme, as well as the likelihood that the route will be established sensibly.

However, those requirements are not a replacement for a proper appeals system, where Natural England's decisions are reviewed by an independent and objective body. The lack of an appeals system has, as has been noted by your Lordships, led to an enormous outcry among many stakeholders. I am sure that we have all received briefings from an impressive array of interested bodies and organisations. I know that my colleagues in another place have received letters from constituents. The Country Land and Business Association, in particular, has been very helpful in articulating its concerns. The strength of feeling from almost all groups has been heavily on the side of inserting a proper appeals system. Indeed, only Natural England has indicated to me that it is happy with the Bill's current drafting.

These are not only outside bodies; several committees have added their voices, too. I am very pleased that the Joint Committee on Human Rights selected my Amendment A357A as one that removes what it confirms is a breach of Article 6 of the European Convention on Human Rights. Of course, many of the other amendments in the group do much the same thing, but it is always nice to hear that one's drafting achieves, for once, what one intended it to do. With such an overwhelming weight of opinion against them, it is not surprising that the Government have indicated that they are willing to move on this point. Indeed, recent discussions have indicated that they now accept that there must be an appeals process. There is much agreement between us about what must be established.

First, the appeals process must be independent. For Natural England or the Secretary of State to act as judge and jury on a report and the representations received would be inappropriate and would add nothing to what has already been drafted. The adjudicating body must be able to disagree with a decision held by both Natural England and the Secretary of State, and have that disagreement upheld. It would be equally inappropriate for Natural England or the Secretary of State to act as gatekeeper to the process. Secondly, the right of appeal should be established for those who are losing something, specifically those losing control of the land that they have a relevant interest in. Thirdly, and as my noble friend Lord Goodlad said, the appeals process should be quick, accessible and as cheap as possible, while remaining credible. It is in no one's interests to tie Natural England and the appellants down in a long, expensive and arcane legal procedure.

Amendment A357A should achieve all these things. The Planning Inspectorate is experienced in such decisions and can act at a suitably local level to ensure that the entire process is not overly burdensome or complicated. I look forward to the Minister's response, and I hope that when we return to the matter on Report we will be much further along in coming to a final agreement.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench 9:30 pm, 21st April 2009

I rise to support these amendments, particularly Amendment A357A. I consider an appeals system to be the key to successful implementation of the Bill. As I made clear in my previous interventions, I very much favour greater access to our countryside. It has enormous benefits for the mental and physical health of our nation. With one or two exceptions, which I touched on when discussing dogs, it is not as harmful to land managers as many of them might think. Indeed, in creating greater understanding of our countryside by outsiders and bringing much needed money into the rural economy, it can be said to bring great benefit to landowners and land managers. That is my view; I accept that I am probably considered rather "unreliable" by many of my fellow landowners on this issue.

I turn to Amendment A357A. Being a natural enthusiast, I am well aware of the dangers of enthusiasm and of thinking that what you are trying to achieve must be as important to everyone else as it is to you. If you are a member of Natural England's staff spending all your working hours trying to plan this very worthy coastal access, whatever anyone might say to the contrary and however professional you might be—the team working for Natural England is highly professional—you will inevitably tip the scales of your decision a little, making the processes favour optimum access as against other priorities of land managers which may involve protecting wildlife or their families' farming income. Natural England staff, supported by Defra and its Ministers, will undertake the extremely difficult task of trying to juggle some obvious and some not-so obvious sections of potential pathways to create a continuous coastal access around our shores.

In pursuit of this complicated objective it would not be surprising if Natural England, Defra and even its Ministers were not prone to interpreting the legislation in favour of their purposes rather than other valid objectives. As I said, I do not say this in any way as a criticism of the professionalism of those involved but, even if they have their enthusiasm well under control, it is vital that justice must be seen to be done. I am aware that the Countryside Agency, of which I was a chair, was accused of spending too much time and too much money conscientiously mapping the land designated under the CROW Act. There were rules and fairly firm definitions involved but the appeals process was vindicated in that case because 75 per cent of appeals were successful. You do not really need to say very much more than that. An appeals process is essential here so that justice can be seen to be done and this very worthwhile initiative sets off on the right foot, if noble Lords will excuse the pun.

Photo of Lord Pannick Lord Pannick Crossbench

In an 1893 judgment on rating law in the Court of Appeal, Lord Justice Bowen stated:

"If no appeal were possible, I have no great hesitation in saying that this would not be a desirable country to live in".

That puts the case rather more strongly than I would, but your Lordships will understand the sentiment. I have added my name to amendments in this group because in the present context a right of appeal to an independent body is essential to securing the 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. That fair balance is the very objective stated in Clause 287(3) in relation to the coastal access duty.

Decisions taken under the Bill to require coastal access will inevitably have a substantial impact on the rights of those who own land or have interests in land. The reasons hitherto given by the Government for declining to make provision for a right of appeal are, with great respect, entirely unconvincing. They have given three reasons. First, it is said that a right of appeal would be an expensive and protracted process. However, it is open to the Government—I very much hope that they will take this step—to adopt procedural rules that will ensure an efficient appeals process. In any event, if there is no right of appeal, aggrieved persons will be able to, and will, bring applications for judicial review in the High Court. I assure the Minister that judicial reviews will be much more expensive and much slower than an efficient appeals process. It is in the Government's interest to adopt an efficient appeals process.

The second argument the Government have made is that landowners can make representations in advance of the decision being taken. But the right to have your views taken into account, valuable as it is, is not an alternative to the right to challenge a decision before an independent body after the decision has been made. Both elements are essential to a fair process.

The third and final point that the Government have made is that a decision on the coastal access duty will not only affect the land of a particular owner or occupier, but will also have implications for others. The answer to that point is that it is common in administrative decision-making for the decisions that are challenged to have an impact not just on the appellant, but also on a range of third parties. Obviously, a planning permission may affect the interests of neighbours. An appeal body will therefore necessarily consider the general implications of its decisions. It will hear representations not just from the appellant and the decision maker, but from any third party with a direct interest. There is nothing unusual about the present context.

The noble Lord, Lord Goodlad, mentioned that the need for a right of appeal has been explained by your Lordships' Constitution Committee. The noble Lord, Lord Taylor, pointed out that the Joint Committee on Human Rights has stated that, in the absence of a right of appeal, the Bill's provisions are not compatible with the European Convention on Human Rights. I very much hope that the Minister will tell the Committee that progress can be made on this.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson for Wales

I wish to make a very short impact on this discussion. I fully support the Bill's objective of giving individuals the right of way around the coastal paths of Britain. However, as someone who has managed land and farmed for a considerable time, I cannot support the principle of no right of appeal, and believe that it should be contained in the Bill.

Whether the wording should be as prescriptive as that contained in Amendment A357A is a subject for debate. It is not clear to me whether "any person" or "any land", as stated in the amendment, is not too wide a definition. Clearly, a landowner or farming tenant should be entitled to appeal; likewise a private individual owning or tenanting land. This would narrow the number of appeals, and other aspects could be handled by local authorities' planning inspectorates and committees. However, as it is, an important point of principle is lacking. The citizen is placed in an unequal position in relation to the state. The denial of the right of appeal is indefensible.

Photo of Lord Greaves Lord Greaves Spokesperson for Environment, Food and Rural Affairs, Spokesperson for Communities and Local Government

I will speak to three amendments in this group. I do not wish to speak to Amendment A350ZA, so the Minister can throw away any notes that he has on that. I will speak to Amendments A350ZZA, A350AA and A350AB.

While I accept a lot of the arguments that have been put forward from different parts of the Committee, I will put forward a slightly different perspective. There is no doubt that there has been enormous pressure from various committees of this House, Joint Committees and committees of the other place, to put something in the Bill that allows people who own or have an interest in land to object and to make representations to an independent person in a way that is not present in the Bill at the moment. We believe that these concerns are legitimate and must be met. Whether they should be met by the amendments that have been spoken to so far is a different matter. However, in some way the Bill must be amended. There has been a developing discussion about this and there has been a series of meetings between Ministers and Members from all sides of the House, as well with people outside the House. What I have to say is intended to be constructive and non-oppositional, which I hope is what I have been doing throughout this part of the Bill. It is important that the coastal access provisions are carried through into law and succeed.

Much of the resistance to any sort of appeal mechanism comes from the experience of the CROW Act, where the appeals system has not been a tremendous success. It has resulted in considerable delays; it has been expensive, legalistic and if it were being done again people would look for a different system. It was almost exactly based on planning appeals in a different context. The result of it has been that in many cases mistakes have been made in the allocation of land. In many parts of the country, that has resulted in illogical, sometimes jagged boundaries and wrong decisions, as viewed from any standpoint, over particular pieces of land. The 10-year, or decadal review is beginning to grind into action and I hope that that will put right some of the wrong decisions, which have been wrong in both directions. There should have been access land that is not and other land has been classified as access land that ought not to have been so classified.

The CROW appeal system is not appropriate for this Bill. Both planning and CROW appeals are against decisions by lower authorities—local authorities and Natural England respectively. The appeal is made to the Secretary of State and is dealt with by the Planning Inspectorate. That is what happens in most planning and CROW appeals. The difficulty in this Bill is that the decisions will be made not by Natural England but the Secretary of State. The proposals under the coastal access scheme will be made to the Secretary of State, so the traditional appeal to the Secretary of State is clearly not appropriate.

What principles should apply? First, we should avoid the problems under CROW. That is a negative principle, but on the basis of experience we do not want to replicate that. Secondly, we should give landowners and other people with interest in land a right of challenge to an independent person, and there should be an expectation that that independent decision at least in most cases will be carried through. Thirdly, it should provide for third-party involvement in a way that often happens in planning and CROW appeals, and which ought to happen under appeals or reviews under this system. Fourthly, the number of appeals and reviews should be as low as possible, and to do that the process must be as good, consultative, involving and inclusive as possible before the reports are published. Fifthly, it should be much quicker than the CROW system has been.

We know that the Government are seriously considering what they should do and have been unofficially circulating a number of papers and proposals. What I am proposing today should lean heavily on what the Government have been discussing, and one reason for my proposals is to give the Government an opportunity to explain their thinking. I hope that they will take that opportunity. The difference between my proposals and what the Government have been talking about is that I think there should be greater third party involvement.

My proposals are set out in Amendment A350AB, which can be summarised as saying that the Secretary of State must appoint a person to carry out an independent review where a representation comes from people with interests in land, and may appoint a person where serious representations are made by other relevant interests. The review has to consider all the representations that the Secretary of State refers and may consider representations from the second category.

The independent person conducting the review has to do it publicly and openly. They must,

"publish details of the matter ... to be reviewed", and,

"make provision for the persons and bodies", who have been making the objections,

"to make ... further representations", if they wish. They must,

"recommend to the Secretary of State", either,

"that no modifications should take place", in the final report on the matters that have been reviewed, or refer it,

"back to Natural England with a recommendation that ... one or more of the matters that have been reviewed", should be considered again. If that happens,

"Natural England must prepare and submit a report to the Secretary of State ... on those matters that are the subject of a recommendation from the independent review".

That is not exactly the system of independent appeals that exists in many areas, but it is a satisfactory compromise along the lines on which I believe the Government are thinking. If that is true, they will have our full support in going ahead, for it satisfies the human rights of those with interests in land but, at the same time, does not prejudice and obstruct the carrying-out of a sensible scheme.

Our final amendment, briefly, is Amendment A350ZZA, which looks again at the question of fair balance being the only reason for a review, and the only issue that should be looked at. Quite clearly, within the context of the scheme as laid down, the concept of fair balance is reasonable and necessary. However, it has to be seen firmly within the objectives of the coastal access scheme. If fair balance is to be the criteria by which appeals are judged, then that has to be done not in a vacuum—as if nothing else existed in the world, and there was no intention to have the scheme—but within the context of the two fundamental objectives of the coastal access scheme, on producing a continuous coastal path and on the access land at the coastal margin. Unless it is looked at within that context, there is scope for a great deal of mischief and obstruction of what I hope Parliament will decide that it wants to see.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

I do not think there is a need for any more 10-minute speeches, because I understand that we are, in fact, knocking on an open door with the Government. However, the Minister must always remember, as I am sure he does, that his department is responsible for agriculture as well as the environment. The Government know that agriculture and the productive use of land is extremely important now; they also appreciate the importance of small businesses. It should not be difficult, then, for them to find a truly just answer—and justice, in this matter, has to be done.

Photo of Baroness Byford Baroness Byford Conservative

I briefly thank my noble friend Lord Goodlad for introducing these important amendments, and I am delighted to know that the Government are looking at some way of bringing forward a right of appeal. I do not think that I have misunderstood the Minister, from what has been said. The noble Lord, Lord Greaves, said that the CROW system had not been successful; well, if 75 per cent of the appeals were granted, I suspect that would make it successful. What we are agreeing, around the Chamber, is that the system is, perhaps, too long-winded and too expensive. I hope, then, that we are looking for something slightly shorter in its length of time and in coming to decisions, but there should be an appeal system because the Bill will, clearly, fall on its face without one. I also inform your Lordships that I have asked for my amendment on compensation to be taken separately after this, as it is a different issue.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

This has been an extremely helpful debate. It is pretty clear that the original proposals by the Government have not found favour with your Lordships, with the Constitution Select Committee or with the Joint Committee on Human Rights. I accept that.

The original proposal in the Bill did not include a right of appeal. Instead, it provided for Natural England to consult affected landowners before preparing its coastal access report. In addition, under new Section 55C(2)(c), the landowner is to be given an opportunity to make representations about Natural England's proposals.

Clause 287 in the current Bill requires Natural England and the Secretary of State to 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 land. There will be additional safeguards for those with an interest in land because certain types of land, such as buildings and their curtilage, gardens, will always be excepted from the right of access. In addition, landowners can apply to Natural England for access to land to be excluded or restricted if necessary for land management process.

I have listened, obviously with a great deal of care, to what has been said tonight on the reports of the two Select Committees. We want to encourage consensus building so that the route and coastal margin best meet the aspirations of the public for improved access while respecting the interest of landowners and occupiers. I am clearly mindful of the report of the noble Lord, Lord Goodlad, from his Select Committee. Most recently, the Joint Committee on Human Rights has raised similar concerns. I noted in particular the comments of the noble Lord, Lord Goodlad, about JR procedures not being particularly accessible to many of the people who would be affected, but there will be some, as suggested by the noble Lord, Lord Pannick, who will pursue JR, and he points out the potential cost to Her Majesty's Government in dealing with those matters. As a former Minister at the Ministry of Justice, I understand the costs of JR proceedings, since we seemed to be the victim of them on a number of occasions.

The Government are clear that they need to respond to the needs expressed by noble Lords tonight. I have had a number of extremely helpful discussions on a possible review mechanism with noble Lords from all sides of the House. It is clear that some form of review mechanism would be beneficial in reaching the consensus I have mentioned. I have circulated a paper setting out a possible review mechanism which would enable the Secretary of State, where it appears to him that a person with a relevant interest is seeking a modification or making any objection to Natural England's proposals, to forward them to an appointed person for review. We envisage that this would be an inspector from the Planning Inspectorate. We also need to look closely at how the views of all interested parties are considered.

We are looking at this matter intensively over the next week or so. My officials are holding a meeting with stakeholders tomorrow to discuss this, but I am confident that we will be able to bring forward some detailed proposals on Report, which I very much hope will meet the concerns expressed by noble Lords.

I understand the points noble Lords have made about wishing to have a procedure which is accessible, that does not cost a lot of money to any person who asks for a review to take place, that can be enacted quickly and that can avoid, perhaps, some of the bureaucratic processes of the appeal system. I take the point the noble Baroness, Lady Byford, makes about the judgment one has to make in relation to the CROW appeal process. We need to learn some of those lessons.

I also agree with the noble Baroness, Lady Carnegy, and wearing my Defra hat it would be very hard not to agree with her, about the particular needs of agriculture and SMEs in having a system that they can use without the prospect of great expense. We will seek to meet all those points.

However, we then come to the very interesting amendment put forward by the noble Lord, Lord Greaves. He did not put forward Amendment A350ZA, but he put forward Amendment A350AA. That really is about the status of representations. The noble Lord knows that we do not believe it would be helpful if just anyone were able to invoke a review mechanism, partly for the reasons just referred to about not wanting to have an excessively expensive and time-consuming process. We do believe, however, that landowners, lessees and occupiers of land have a particular interest in the land they own or occupy and this, we think, has been recognised by the most recent report of the Joint Committee on Human Rights. This speaks about providing a right of appeal to those affected by the designation of public rights of access over private land. That is the basic premise on which we are working in drawing up a suitable mechanism.

Of course, however, I fully understand the point the noble Lord, Lord Greaves, is making about the need for everyone with an interest in coastal access to have an opportunity to put forward their views on proposals for access. For any mechanism we draw up, it is important to me that the proposals will not be seen and commented on by these groups. What I would envisage is this: if, for instance, as a result of the review mechanism, an objection made by a landholder, lessee or occupier is upheld, one outcome might well be that Natural England would be asked to draw up revised proposals on the piece of land in question. That would then be subject to consultation and representation in the same way as the original proposals. That is the kind of process we envisage; it would ensure the involvement of all interested parties, but after the review mechanism had taken its course.

I hope noble Lords will feel that I have responded constructively to the very serious points raised. There have been useful discussions, and we shall continue with them. I very much hope that I can bring in an amendment on Report which, if it will not satisfy the noble Lord, Lord Greaves, on the specific point he is raising, will answer the generality of the points. At the end of the day, we want a consensus approach and we want landowners, lessees and tenants to have confidence. I believe that the kind of review mechanism we are proposing will enable that to happen.

Photo of Lord Greaves Lord Greaves Spokesperson for Environment, Food and Rural Affairs, Spokesperson for Communities and Local Government

I, for one, am grateful for the work that the Government and the Minister and his team are putting into this. I do believe that something close to a consensus can be reached. Consensuses are sometimes 85 per cent agreement with people disagreeing at the edges, but that is better than disagreeing fundamentally. So I congratulate the Government on the work they are doing.

There are two issues about third party involvement. One is whether third parties should have the opportunity to initiate a review. As a result of representations made by third parties on a report, the Secretary of State could decide to have a review, which is what I was suggesting. I understanding why the Government are saying that this should not happen, and I would not press that very vigorously.

But the second question is whether, if a review takes place, third parties should have the right to have their say, to make representations during that review. That would be in line with planning appeals and CROW Act appeals, where, at the moment, third parties have that right. They do not initiate the appeal: the appeal is initiated by landowners. But anyone who has previously made comments on that particular piece of land, in relation to the CROW Act or a planning application, is almost always given the right to put their oar in. That does not necessarily take up a great deal of extra time or energy or expense. It is just a fair part of the system, and I would hope that the Government would consider that second point, if not the first. But I do express some satisfaction with the way this is going.

Photo of Lord Goodlad Lord Goodlad Conservative

I add my thanks to those of the noble Lord, Lord Greaves, for the Minister's reply, which was extremely helpful. We look forward to a positive outcome from the Minister's consultations with the stakeholders in this matter tomorrow and to our further consideration of these issues on Report. The paper that he generously circulated to us clearly does not meet the concerns of the committee, which the noble Lord, Lord Pannick, expressed extremely eloquently. I expect we all hope that the consultations will produce a consensus that is acceptable to all the stakeholders, and we will return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment A343 withdrawn.

Amendments A343A to A357B not moved.

Photo of Baroness Byford Baroness Byford Conservative

I think that the last amendment is the one that we have degrouped. In fact, the Deputy Chairman of Committees

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

I had only got to Amendment A357B, which was not moved. Now we get to Amendment A357BA.

Amendment A357BA

Moved by Baroness Byford

A357BA: Clause 292, page 181, line 44, at end insert—

"55EA Compensation for loss caused by coastal access

(1) Subject to the following provisions of this section, if, on a claim made in accordance with this section, it is shown that the value of an interest of any person in land is depreciated, or that a person has suffered damage by being disturbed in his enjoyment of land, in consequence of the creation of coastal access across that land, Natural England shall pay to that person compensation equal to the amount of the depreciation or damage.

(2) A claim for compensation under this section shall be made within such time and in such manner as may be prescribed by regulations made by the Secretary of State, and shall be made to Natural England.

(3) Nothing in this section shall confer on a person a right to compensation for depreciation of the value of an interest in land, or disturbance of his enjoyment of the land, being land which is not comprised in the coastal access report or if so comprised is excepted land, except if and in so far as either—

(a) it is held with land comprised in the coastal access report which is not excepted land, or

(b) the omission of any other person to exclude the public from the land comprised in the order or any part thereof would have been actionable at the suit of the first-mentioned person if the coastal access report had not come into operation."

Photo of Baroness Byford Baroness Byford Conservative

I apologise to the Deputy Chairman of Committees. She was not in the Chair earlier when I asked for this amendment to be degrouped.

I am very grateful for the Minister's response to the group of amendments that we have just debated, because clearly a right of appeal needs to be built into the Bill. I also believe that there should be some form of compensation, because areas of land may well be taken from those who own them to provide access, and that will be done in a compulsory fashion.

I start by reminding the Committee of my membership of the National Farmers' Union, the CLA, the Countryside Alliance and the National Trust, but it is the CLA and the NFU that have particularly raised the issue of compensation.

The Minister said earlier that the Select Committee criticised the Government's response to its recommendations on rights of appeal, and that is true also concerning the whole question of compensation. I turn, first, to the ninth report of the House of Commons Environment, Food and Rural Affairs Committee, Session 2007-08. On page 20, it clearly says:

"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".

Indeed, the noble Lord, Lord Greaves, and I both sat on the Joint Committee of both Houses. Again, its report says, on page 92, that most interested parties agree that compensation should be available in particular cases of demonstrable loss. There was also agreement that there should not be a presumption of compensation for all landowners and occupiers. Even though the Government are going to come up with some suggestion of right of appeal, they should also consider adding some form of compensation to the Bill. It is late and most noble Lords who are in the Chamber at the moment are well aware of this amendment, so without further ado I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

The noble Baroness was pleased with my response to the previous discussion about appeals or a review mechanism. I suspect that this is not going to be so positive for her, though I am very grateful for the succinct way she has drawn out the issue. Essentially, her amendment would mean that Natural England would have to pay compensation for any loss caused by coastal access if it could be shown that the value of a person's land had depreciated, or that the person had suffered damage by being disturbed in his enjoyment of the land. I am afraid that I am going to resist this. The Bill has been drawn up so that the implementation of a new right will take account of the interest of landowners and minimise any impact on business. It is worth pointing out that land covered by buildings, or the curtilage of such land, will be excepted from the right of access. We expect the overall impact on business to be positive—I do not know if I can pray the noble Lord, Lord Cameron, in aid of that as a general point, but I will tempt fate in seeking to do so.

The right of access was introduced under the CROW Act and we now have experience of it working and working well. We do not consider that it is appropriate that compensation should be provided for and, as far as the landowner's interests being protected if there is no right of compensation, I refer the noble Baroness to Clause 287, which requires the Secretary of State and Natural England to strike a fair balance between the interests of landowners and the interests of the general public. As I have made clear, since the Government are clearly committed to introducing a review mechanism, we think that we have the balance right.

Photo of Baroness Byford Baroness Byford Conservative

I thank the Minister for the way he has responded and I accept that, within the Bill, the Government are looking to strike a fair balance. Even so, that leaves me somewhat uneasy. He is virtually saying that the Joint Committee has got it wrong; that is how I read it, shorthand. I do not think that it has got it wrong, so on this occasion I am grateful to him for the very positive way he has tried to facilitate the various issues that we have raised throughout debates on the Bill, but I may well want to come back to the amendment at a later stage; it depends on the appeals system.

As the Minister knows so well because it carries his name, the front of the Bill states:

"Lord Hunt of Kings Heath has made the following statement ... In my view the provisions of the Marine and Coastal Access Bill [HL] are compatible with the Convention rights".

If you are taking away something that belongs to somebody and you are not in any way considering giving them any compensation, I do not think that is compatible. I am only sorry that one or two of our legal friends are no longer sitting in their places, but I would like to give it thought before we come back on Report. I am well aware of the difficulties that we experienced when we were taking the CROW Act through and then the consequences of the appeals system being rather long, so it has not helped itself, but there should be some form of compensation in there. However, I shall leave that for another day.

Photo of Baroness Byford Baroness Byford Conservative

Perhaps that covers compensation. Clearly, it is always a difficult situation when one accepts the interests of the majority against the minority person who might be the owner or the occupier, or might have a business on what is likely to be coastal access land. I am grateful to the Minister and I beg leave to withdraw the amendment.

Amendment A357BA withdrawn.

Amendment A357C

Moved by Lord Taylor of Holbeach

A357C: Clause 292, page 182, leave out lines 6 and 7

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

We have tabled Amendment A357C and the others in this group, to which I will speak, to call into question the power which new Section 55F(3) to be inserted into the 1949 Act here affords to Natural England. New subsection (2) clearly specifies that Natural England must abide by the approved proposals for long-distance routes, which would otherwise come under Section 2(1) of the CROW Act. This is very sensible because, in areas where Natural England has control, the coastal access scheme will not work unless it is required to follow its proposals. Bearing this in mind, it seems to make very little sense to then allow Natural England powers,

"to revoke or vary the direction after it is made".

Indeed, that seems to undermine the reasoning behind subsection (2). Will the Minister tell us why this should be the case? How much control would this afford to Natural England over the direction and designation of the route?

We have tabled Amendment A359A to ensure that land which can be taken as coastal margin does not apply at the expense of all other legislation.

It ensures that Sections 22, 24 and 30 of the CROW Act—"Exclusion or restriction at discretion of owner and others", "Land management" and "Appeal by person interested in land"—still apply to the designation of spreading room. It also specifies that land which is excluded as coastal margin land by Schedule 1 to the CROW Act cannot be included as spreading room. Furthermore, it limits the extent of spreading room to 2 metres on either side of the designated line of coastal route.

Amendment A359B reinforces these changes by removing the proviso in the Bill that states that any restrictions on access under Chapter 2 which apply to land that has become coastal margin land have no effect after the preparation period. In contrast, our amendment ensures that these restrictions remain and are instead incorporated into the "approved proposals".

These restrictions are necessary and important. They place a limit on spreading room in terms of its physical extent and in terms of allowing owners, factors of land management and persons interested in the land to maintain their legal rights as under CROW and have a say in the use of their land. We believe that this is crucial to ensure a balance between the importance of the path and the relevance of other uses of the land. We believe that spreading room must be catered for, but not at the expense of other land use.

Our Amendment A359D allows the Secretary of State power to designate, at a maximum of 14 days,

"a period of special protection for wild birds", which the relevant authority must carry out. Periods of prolonged severe weather, for example, may cause severe damage to survival rates of populations of wild waterfowl. There is a large amount of documentary evidence showing the energy costs of their taking flights in reaction to being disturbed at these times.

Amendment A359D would ensure that in such conditions the Secretary of State had the power to order restricted access, which would protect these birds. It would also add a degree of flexibility that is necessary for this coastal access path. It is important that we remember that while continuous access to the coast is important, other factors must be taken into consideration to which we should be able to adapt. It may mean that there is a short period where access to a certain part of the coastal path is restricted or denied. Nevertheless, this would not be for very long. It would not need to involve a great deal of the path; nor, indeed, is it too big a price to pay for maintaining the delicate balance with the flora and fauna that most people will go to visit. I beg to move.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

I am grateful to the noble Lord for the succinct way in which he has presented an important case. This group of amendments deals with Clause 293(5), which allows the Secretary of State by order under new Section 3A to the CROW Act to modify the description of land in England as coastal margin for the purposes of this part of the Act.

Amendments A357C, A359A and A359B would restrict the ability of the Secretary of State to make changes to the restrictions regime and to Schedule 1 to the CROW Act, which covers categories of excepted land. The amendments refer to "spreading room". I have no difficulty understanding what spreading room is, but the noble Lord will also know that we have no definition of spreading room in the Bill because we do not use it. He makes me swallow hard when he comes up with a new term at this stage, although I have no doubt that he will say that it is not a new concept. We take spreading room to mean the coastal margin, other than that over which the route actually passes. The amendments seek to restrict changes to the restrictions and excepted land regime by referring to the route strip only. Amendment A359D would introduce a new type of exclusion or restriction for the protection of wild birds, for the reasons expressed by the noble Lord when he introduced the amendment, for a limited period of not more than 14 days at the discretion of the Secretary of State.

Continuity and certainty of access are paramount to our vision of improving access to the English coast. That principle underlies this legislation. Because of this, although access to land may still be excluded or restricted, there will clearly be some differences between this and the current system under the CROW Act for open country—mountain, moor, heath and down—which gives rise to very different issues from those to which the coastal path gives rise.

We expect careful and considered identification of the coastal margin to be undertaken in line with a statutory scheme approved by the Secretary of State, and in consultation and discussion with local interests, to ensure that any impact on business is minimal. I bear in mind the various representations made earlier in our discussions today about the significance of the health of the countryside to those who use and appreciate the coastal paths.

When aligning the route, Natural England would be able to propose restrictions on access, for example for nature conservation reasons, or to protect crops or livestock. People with an interest in the land will also be able to ask Natural England to propose restrictions, for example for reasons of land management, and can make representations to the Secretary of State if Natural England does not do this. The need for these restrictions will be considered by the Secretary of State. After the initial alignment process, landowners and those with an interest in land will be able to apply for further restrictions if circumstances change, and they will be able to make representations if these are not agreed.

These measures mean that the facility in the CROW Act for landowners to restrict or exclude access for up to 28 days a year at their discretion—this is available for open country—is not necessary or appropriate for coastal land. We have to ensure that continuity of access around the coast is maintained. Otherwise this legislation does not achieve its main purpose.

As I said previously, we will carry out a public consultation process on the new Section 3A order to allow owners and occupiers of land the opportunity to comment on any proposals we might make. We have already published a paper setting out the changes we envisage will need to be made, but we will review these in the light of the consultation process. We will look in particular at whether different regimes are appropriate for the route slip and the wider coastal margin. We need the benefit of that consultation and other debates both in this House, which I can anticipate on Report and beyond, and in the other place, will help to guarantee that we get this right. Our view, therefore, is that the provisions in the Bill for full consultation with owners and occupiers about the alignment of the coastal route and our consultation on the order are the right ways to take these important issues forward. We do not see the need to insert a new provision in the Bill, and although I share with the noble Lord, Lord Taylor, the concerns he has expressed in his amendments, I hope he will accept that the Government have considered these issues fully and that the Bill pursues a road which guarantees that what he seeks in his proposals for the way in which Natural England is to operate is already in the Bill. Given that, I hope that he will withdraw his amendment.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

I am pleased that we have had this debate and I am grateful to the Minister for his response. He will not be surprised that the coastal margin, spreading room or whatever it is called, probably causes as much anxiety, if not more, than the actual path itself because an unpredictable element comes into the equation. It is not surprising that people are concerned about the impact it might have on their holdings, farms and property. This group of amendments ties in well with our discussions on the previous few sets of amendments where we have considered the relative rights and responsibilities of owners and the community at large as regards access to a coastal path. I note what the Minister has said, but this whole area is one that we will look at again on Report. In the mean time, however, I beg leave to withdraw the amendment.

Amendment A357C withdrawn.

Amendments A358 to A358C not moved.

Clause 292 agreed.

Clause 293 : Access to the coastal margin

Amendments A358D to A359D not moved.

Clause 293 agreed.

Amendments A360 and A361 not moved.

Amendment A362 had been withdrawn from the Marshalled List.

Amendments A362A to A362AE not moved.

Clause 294 agreed.

Amendment A362AF

Moved by Lord Greaves

A362AF: After Clause 294, insert the following new Clause—

"Interruptions to the coastal route by proposed development

(1) The Planning Act 2008 (c. 29) is amended as follows—

(a) in section 8 (consultation on publicity requirements), after subsection (1)(b) insert—

"(c) Natural England if the location is in whole or in part coastal access land within the meaning of section 3A of the Countryside and Rights of Way Act."

(b) in section 42 (duty to consult), after paragraph (d) insert—

"(e) Natural England if the land is in whole or in part coastal access land within the meaning of section 3A of the Countryside and Rights of Way Act."

(2) This subsection applies when Natural England receives a notification of a proposal for development consent from the Infrastructure Planning Commission, or of an application to a local authority for planning permission, and the proposed development is in whole or in part on coastal access land.

(3) If it considers that the proposed development will have a serious effect on coastal access in that area, Natural England must carry out a review (an "urgent review") of the coastal access on the affected land in consultation with the applicants, the persons listed in section 55E of the 1949 Act and the local planning authority.

(4) Natural England may—

(a) object to or comment on the application for development consent or planning permission, and the existence of coastal access land is a material planning consideration in the determination of the application;

(b) request the applicants to provide alternative coastal access by means of an alternative route and coastal margin, and such provision may be a relevant condition or part of a planning obligation in the consent;

(c) provide alternative coastal access by means of an alternative route and coastal margin."

Photo of Lord Greaves Lord Greaves Spokesperson for Environment, Food and Rural Affairs, Spokesperson for Communities and Local Government 10:30 pm, 21st April 2009

This amendment is about the relationship between the planning system and the new coastal route and spreading room. To some extent this was covered earlier by the noble Lord, Lord Cameron of Dillington. It would be helpful if we had a much clearer idea, not necessarily of how the new coastal route and the coastal margin will fit into the planning system—although they will have to fit into local development plans—but how there will be a relationship between them. This is not a particularly coherent amendment, I regret to say; it is not one of my best. As we did not reach it last time, I promised myself I would rewrite it during the Recess, but I found other things to do like going to football matches.

There are two aspects. One is how the existence of coastal margin land, particularly the coastal route, will be portrayed within the local development framework. It clearly will be because long-distance routes tend to appear on the local map at the moment. That question is not dealt with in this amendment. The second aspect is what happens when there are applications for planning permission or development consent for major infrastructure projects to the new Infrastructure Planning Commission. What will happen to the coastal route as a consequence of these planning applications and what will be the process by which this happens? These important matters ought to be considered. Natural England will clearly be at the forefront of looking at the effect that planning applications and potential developments have on the coastal route, but there needs to be a formal process. If it is an application for planning permission to a local authority, Natural England will probably be a consultee already in that process. It is not a statutory consultee under the Planning Act 2008 for applications for development consent but it ought to be if it affects a long-distance route, particularly the coastal route and the coastal margin. It ought to have the opportunity to make representations about the planning application as it is being considered. I am not suggesting that in most cases the existence of the coastal route will be a major material consideration in looking at a major planning application, but it might be. It certainly ought to be an important consideration in looking at a small local planning application to a local authority. The fact that a small development might have a significant effect by obstructing or in some way worsening the experience of the coastal route and the coastal margin ought to be something the local planning authority has to consider. It may not regard it as being the most important thing and it may give planning application after all, but if opinion is divided 50:50, it may tip the balance. On some parts of the coast, a planning application that threatens to spoil a major local tourist and recreational feature may be very significant indeed. At that stage, Natural England ought to have a clear statutory involvement and be able to make representations if it wants to.

If a planning application that affects the coastal route is granted, there ought to be a clear process for dealing with the implications, either by organising replacement coastal margin land or by providing an alternative route, as part and parcel of the process of the planning application. This is kind of thing that local authorities deal with every day in planning applications and it ought to apply in this case. If it does not, Natural England should still have the responsibility to take action, by an appropriate diversion or some other way, to repair the damage that is being caused to the coastal route.

I am probing how the planning system and the coastal access system will interrelate and how things will happen at different stages of the planning process, from people applying for planning permission to developments being carried out. It would be helpful if the Government were much clearer than they have been so far on these matters. I beg to move.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench

The noble Lord, Lord Greaves, will not be surprised to hear me express doubts about the amendment. Of course Natural England will be involved in any proposed development that is likely to affect the coastal route, but I refer to the comments that I made a moment ago about the natural enthusiasm of those involved, which will inevitably steer Natural England to go for the option contained in subsection (4)(a) in the proposed new clause, as that will be its route: it is much easier to object to a development than to rethink the route and the bits of the route on either side of the development, as obviously there has to be continuity.

This is just the sort of example that worried me when I spoke in favour of Amendment A357B on the importance of flexibility to accommodate future development. Of course planners must acknowledge the existence of the coastal route when considering any proposed development on our coast, but I would prefer it if the options contained in paragraphs (b) and (c) of subsection (4) were the options of first resort and it was the local planning authority or the IPC that decided that, in the light of the alternative routes being put forward either by Natural England or by the developer, the existing route was irreplaceable. It should be the planning authority that decides whether that is a material consideration in the planning decision on the proposed development.

Photo of Earl Cathcart Earl Cathcart Shadow Minister, Communities and Local Government, Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Scotland

We do not agree with the amendment, which would put on the face of the Planning Act 2008 that Natural England must be a consultee. The Government are averse to lists and to including the names of organisations in primary legislation, as the name of organisations may change. Indeed, not so long ago Natural England was called English Nature. Who knows what it will be called in a few years' time?

Our main objection, however, is to subsection (4)(a) in the proposed new clause, which says that,

"the existence of coastal access land is a material planning consideration in the determination of the application".

We would not wish to limit any further the rights of those with relevant interests in affected land. We have heard from the Country Land and Business Association—the CLA—of its strong opposition to the amendment. In previous discussions, I understood Defra to say that the Bill as drafted meant that the coastal route or margin would have no impact on any planning decisions that the landowner might seek in future. I understood the principle to be the same as in the CROW Act, where the owner is free to change the use of the land and the right to roam will be amended accordingly. I would welcome assurances from the Minister on that point. If the landowner wishes to develop their property, whether it be planting a new wood, ploughing up a bit of grazing, building a new cottage or extending a business premises, they should be able to do so, subject to existing planning law. The coastal route and the coastal margin is about making suitable land accessible to the public. We do not want to sterilise our coast or create a pseudo-national park by saying that the existence of a coastal path is a material planning consideration in the determination of a planning application.

My noble friend Lord Taylor of Holbeach sought in his amendment A357B earlier today to require a review to be requested because of proposed or actual changes in land use. The ability to change land use was strongly supported by my noble friend Lady Byford and by the noble Lord, Lord Cameron of Dillington. I am pleased that he spoke again to this amendment. If local authorities feel there is sufficient need for a new route or right of way, which of course is taken into account in planning decisions, there are procedures in place for that to happen. This Bill should not be used to hamper the ability to change land use. To limit what owners can do with their own land would be a significant restriction, far greater than the impact we have been talking about so far.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

I am grateful to noble Lords who have contributed to this short debate. I was particularly grateful for the earlier remarks of the noble Earl, Lord Cathcart. I thought for one moment that he might be making the totality of the response I was going to make to the noble Lord, Lord Greaves. Subsequently in his speech he veered away from the way that I would have expressed matters, so I think there is a little space for me to occupy in responding to the noble Lord, Lord Greaves.

The Government do not accept the amendment but we do recognise the concerns expressed by the noble Lord about the impact of development on the route where the route would be interrupted by such development. As I made clear when we debated the provisions for excepted land, the CROW right of access is sufficiently flexible to allow for changes in land use. We expect the process of consultation which Natural England undertakes prior to drawing up a coastal access report to identify likely new developments so that it can take those into account in drawing up the proposals. It is not conceivable that Natural England would be unaware of nationally significant developments. Should there be developments after the route has been put in place, Natural England will have the power under Section 55 of the National Parks and Access to the Countryside Act 1949 to draw up a report proposing a variation of the route. For these reasons, I believe that we have adequate powers as far as Natural England is concerned to respond to the issues of development and I do not think that it is appropriate for the coastal access provisions to be specifically included in the Planning Act, which was also the burden of the remarks of the noble Earl, Lord Cathcart.

I accept that there is a case to provide for Natural England to be required to carry out a review of its report where a stretch of the route is subject to development which, in its view, has or will result in the land over which the particular stretch of route passes becoming excepted land. I entirely accept the burden of the amendment of the noble Lord, Lord Greaves. Natural England must be able to take account of these issues and have some locus with regard to them.

However, the case has not been made for what would be substantial amendments to this legislation. We have considered how Natural England will cope with the problem, which is of some significance. It will consider planning applications where access is already an issue. There will obviously be only one consideration that the planning authority must weigh up. The planning authority has its clear obligations under the Bill and this aspect must be taken into the balance. That is somewhat different from the burden of the amendment tabled by the noble Lord, Lord Greaves. The planning authority will also take into account the interests of the local economy, the position of local landowners and the possibility that the route could be varied to avoid the development without any cost to the enjoyment of those who tend to use the route.

I recognise the important point on development that the noble Lord, Lord Greaves, has raised. We have considered this matter carefully and the amendments do not provide the right approach to the issue. What is in the Bill will ensure that Natural England will be in a position to come to terms with development, as of course it should.

Photo of Lord Greaves Lord Greaves Spokesperson for Environment, Food and Rural Affairs, Spokesperson for Communities and Local Government 10:45 pm, 21st April 2009

I am even more confused now. I thank the Minister for his reply. I will explain why I am confused in a minute. I say to the noble Lord, Lord Cameron, that there is nothing in this amendment that suggests that the coastal route should be the only thing that is considered, or that any other kind of development should necessarily be ruled out. It does not say that at all. Nor does subsection (4)(a) say that. All that subsection (4)(a) states is that it should be "a material planning consideration" along with all the others.

The noble Earl, Lord Cathcart, said that it should not be a material planning consideration. I am confused about that. I do not understand why it should not be, since it will be an important part of the local economy, the local recreational and leisure facilities and the land use of the area. By setting up the coastal route and access land as it stands, you effectively change the land-use designation of that area. You allow people access to recreational areas that they do not have access to at the moment, and you create a long-distance route. That long-distance route will certainly appear in local development framework documents, or what we now call the local plan. I cannot see that it can possibly not appear in those documents. Once it appears in them, it is part of the planning system.

I understand the difference between the designation of land under CROW and the long-distance route, but the long-distance route will not be designated under CROW. It will be designated under the 1949 Act. A long-distance route such as the Pennine Way or the south-west coastal path is already a material planning consideration for any development that would take place and would affect it. That is my view; if the Government think that I am wrong, I would like to hear from them because I do not claim to be a total expert on this.

I am absolutely certain that these matters are considered. They will certainly be a cause for objections to developments next to or on the path of the long-distance route which people think are inappropriate. I cannot conceive that the planning system would not consider those objections fairly and objectively. This is not to say that it has to overrule everything else. There seems to be a lack of understanding among some noble Lords about how the planning system works. People are allowed to put in objections. Just because Natural England would be a statutory consultee under my proposals and be able to say, "No, this would be disastrous and should not be allowed", or, "If you are going to do it, this is how we would divert it", does not mean that the local planning authority or the Infrastructure Planning Commission would regard that as the be all and end all. It may say, "We have considered these representations but on balance we are going to give planning permission". That happens all the time. I believe that Natural England is probably already consulted automatically by a lot of planning authorities on a lot of applications. Therefore, I do not understand what the objection is to the measure.

I am confused because on the one hand we were told that these matters are nothing to do with this Bill and everything is okay, but on the other we are then told by the Minister that Natural England may well make representations, which will be considered along with all other representations, which is what I would expect. The local planning authority will then make a balanced decision. Surely that is what will happen, so I do not understand why the essence of the amendment, although not the wording, is being resisted. I am really trying to probe how this will work. What will be the relationship between the long-distance route and the planning system both in terms of overall planning—the development of local development frameworks, for example—and in terms of dealing with particular planning applications and what Natural England has to do if a development takes place which radically affects the route or the coastal margin, but particularly the route? What responsibilities will Natural England have to rectify the situation as regards the route? I do not understand why everybody is getting worked up over this. It seems to me that these are practical things that will happen and will have to be considered. The Government ought to think about this and tell us how the process will work. In the mean time, I beg leave to withdraw the amendment.

Amendment A362AF withdrawn.

Schedule 19 : Establishment and maintenance of the English coastal route etc

Amendment A362B

Moved by Lord Taylor of Holbeach

A362B: Schedule 19, page 283, line 7, leave out "clearance or"

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

I received notification that the noble Lord, Lord Greaves, wished Clause 294 to stand part. Therefore, I shall continue.

My amendments in this group probe the implementation and maintenance of the coastal route. There are a great number of small amendments here. Therefore, I shall try to speak to the larger issues on which I hope to receive further clarification. First, I wish to address the question of the work done to establish the route. Schedule 19 raises the possibility of some serious works being necessary. Paragraph 2(3) speaks of clearance and the removal of obstructions such as walls. When I first read through the schedule, I was pleased to note in Paragraph 2 that this will all be done with the agreement of the owner or occupier, and that Natural England or the access authority will bear the costs except where the owner agrees to undertake the works himself. Unfortunately, I then turned the page and realised that that is not the case under Paragraph 3. Here Natural England or the relevant access authority is able to come on to private land and start chopping down trees, filling in ditches and digging up walls in order to smooth the way for the coastal route. I hope that the Minister will assure us that sub-paragraph (3) is to be used only in the most extreme cases where Natural England has done everything it can to gain the proper permission for the works, and that in that case the owner or occupier would not be expected to fund any proportion of them.

I should also like clarification on why yet another definition of who has a relevant interest in the affected land, beyond those that we have already discussed, is being used. I should also like to hear more about how much disruption to the landscape the Minister thinks is appropriate for the creation of the route. It cannot be in anyone's interest to destroy natural wildlife habitats. This links to earlier discussions about whether the route is to be four metres wide where possible. Obviously, considerably more chopping down, filling in and digging up will be necessary if four metres is to be the standard. I hope that Natural England would rather reduce the width of the route than undertake significant works. I should also like confirmation that none of these works may be undertaken for the purpose of extending the coastal margin.

Secondly, I turn to notices and signs. My amendments probe where it might be necessary to change the signage on someone's land without consulting them, and when Natural England might not bear the full cost of such signage. They also express the hope that an indication of the extent of the coastal margin will be included on the signs, and that Natural England must reasonably respond to complaints by relevant people that signage is inadequate—perhaps where the public frequently wander off the route onto land where there is no access. I beg to move.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench

I support Amendment A362N, which concerns signs. Many of us, including from the government Front Bench, have spoken on Part 9 and the importance of involving locals in the implementation of coastal access. The involvement—and support, where possible—of local authorities, parishes, landowners and farmers will be crucial to the effective operation of the whole initiative. If a local landowner, farmer or parish says that there are problems with walkers getting lost, or wandering where they should not be, it is entirely right that Natural England should have to respond with a helpful sign. Even if Natural England thinks that the route is perfectly obvious, it will be the locals who know what is happening on the ground, and their support will be needed to make the scheme work effectively. This is an eminently sensible amendment.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

Schedule 19 provides powers that are necessary to enable Natural England to identify, establish and maintain the route. For example, it enables Natural England to enter land for the purpose of surveying in connection with the preparation of a report to the Secretary of State proposing a coastal route. It provides for Natural England or the access authority to enter land for the purpose of identifying whether any works are necessary to facilitate use of the route, and for carrying out such works; and it enables Natural England or the access authority to enter into agreements with landowners or occupiers about the carrying out of works, and to make payment for the carrying out of works. Where a satisfactory agreement cannot be reached, Natural England or the access authority will be able to carry out the work themselves. The schedule sets out the steps that must be followed, and the right of appeal for landowners, before such work commences. It also provides for the signing of the route and of the boundaries of the spreading room.

The substantive response that I will give to the noble Lord, Lord Taylor, answers the question, "Will this power be used in a proportionate way and will the compulsion be used in exceptional circumstances?". I fully accept the point that he is raising. We very much hope that works will be done by agreement, and that the reserve powers of intervention will be used only on rare occasions. The whole premise of this legislation is to ensure that, wherever possible, there is consensus.

Amendments A362B to A362E would mean that it would not be possible for Natural England or the access authority to enter into agreements with owners and occupiers for the clearance of land to facilitate the use of the route by the public, or to facilitate rights of access by bicycle or horseback where restrictions on those rights have been relaxed by the owner. I think that that might be said to go against the spirit of the implementation of the eastern coastal route, which should be carried out where possible by working closely with landowners. If we were to accept the amendment, an agreement for the removal of obstructions such as a wall, fence or other barrier could not be entered into. Where the optimum siting for the route requires clearance or the removal of an obstruction to make it accessible, Natural England or the access authority ought to be able to enter into an agreement with landowners and occupiers to do the necessary improvements.

Amendments A362F, A362K, A362P and A362R would require Natural England or the access authority to meet expenditure incurred by the owner-occupier in carrying out agreed works to implement or maintain the route. The Bill already provides powers for meeting or contributing to such costs. It is argued that the detail of such payments should be a matter for agreement between the contracting authority and the landowner or occupier taking the particular circumstances into account. Natural England will meet the costs of implementing the route and we think that the approach set out in the Bill provides the flexibility to make reasonable agreements with landowners and occupiers. It also ensures that where for whatever reason such agreements are not possible any necessary work can be carried out.

Amendments A362G and A362H would remove the powers enabling Natural England or the contracting authority to recover relevant expenses where an owner or occupier fails to carry out the works which he has entered into an agreement to carry out and where the contracting authority carries out those works itself. In that respect the authority must be able to recover any expenses over and above its own contribution from the person with whom it has been agreed that the cost of carrying out work should be met and which the authority has incurred as a result of failure of the owner or occupier to carry out the agreed works.

We considered a similar amendment to Amendment A362J when we discussed consultation on Natural England's report. As I said, it is not appropriate to extend the definition of those with a relevant interest in affected land to include those with other interests. Anyone may make representations to Natural England.

Amendments A362M and A362Q would require Natural England to consult landowners and occupiers before erecting or removing any signs about the routes or warning of any hazards. The Bill already provides that Natural England must consult such persons as far as is reasonably practicable to do so. That is a sensible measure that will permit the erection of central signage and information on the safety of users where the identity of an owner-occupier may not be known or when it may not prove possible to contact them. Consultation with landowners, occupiers and other local interests will be the key to the successful implementation of the coastal access route.

Amendment A362N would add a provision that a person with a relevant interest in the land may request Natural England to provide a notice or sign. The Bill provides for consultation with and representations by those with such an interest. I am not convinced that it is appropriate to single out signage. On the question of an assurance that the works relate only to the route and not the margin, the answer is yes that that is generally the case. Paragraph 2(3)(a) and (b) makes it clear that it applies to the route. Exceptions arise under paragraph 2(3)(c), which relates to the margin but only where the landowner has given consent for horse-riders or cyclists to use the land under a relaxation of a general restriction under sub-paragraph (3)(e), which relates to contracting and removing walls and fences, et cetera, which we would expect to be generally related to the route.

Overall, this follows CROW and we think that the balance is right. It is not a great big hammer to force landowners and others to do things that they do not want to do. I want to come back to the original point put to me by the noble Lord, Lord Taylor. We would expect this to be done through agreement. There may be exceptions but I hope that they would be limited.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

I am pleased to hear the latter comments from the Minister, because some of these powers are, indeed, extensive. We have been trying to construct this path, if one may put it that way, on the basis of consensus and the hope that there will be a buy-in locally. I understand that there could be circumstances where the landowner is not identifiable, and it is necessary to construct a path or to do works on it. However, I am reassured by what the Minister has said, to the extent that he appears to appreciate that getting this wrong could cause many problems.

I mentioned the width of the route, which is laid down as being 4 metres in normal circumstances. Where that passes through woodland, or close vegetation typical of an area, the Minister did not say whether clearance of that natural habitat would be part and parcel of creating that route of 4 metres' width, or whether a more natural path, which in some cases might already exist, could be adopted. I also asked for confirmation that works of this nature—the clearance of woodland, scrub or brushwood—would not be undertaken for the purpose of extending the coastal margin. I am particularly concerned that, if this path is to be driven like a motorway through the coastal regions, we could end up with a very negative impact. I do not suppose that to be the purpose for a moment, but we ought to be clear and I would like reassurance from the Minister on that matter.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

I am grateful for that, because it is important to reassure the stakeholder groups on such matters; they will be interested in the mechanisms with which they will be dealing. I am sorry that the Minister has not been more positive on signage, something in which he should take a great interest.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

I am grateful for that and for the response from the Minister. I beg leave to withdraw the amendment.

Amendment A362B withdrawn.

Amendments A362C to A363 not moved.

Schedule 19 agreed.

Clause 295 : Restricting liabilities of Natural England and the Secretary of State

Amendment A364

Moved by Earl Cathcart

A364: Clause 295, page 188, line 41, leave out subsections (1) to (3)

Photo of Earl Cathcart Earl Cathcart Shadow Minister, Communities and Local Government, Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Scotland

This small group of amendments is intended to probe the question of liability around the coastal route. I am afraid that I might also drag the following Clause 296 into my remarks, and I hope that your Lordships will forgive the lack of an amendment tabled in my name addressing it. As I understand it, Clause 295 means that Natural England is not liable for any injury that a member of the public may incur along the route, unless that injury was predicted in a representation or request for a restriction or exclusion by someone with a relevant interest in the land. That is in contrast to Clause 296 where the occupier remains liable in much wider circumstances. That does not seem fair. Why should Natural England and, indeed, the Secretary of State be able to shrug off any responsibility for the public when the owner cannot?

Clause 296 is an improvement on what went on before in the CROW Act. At least the owner is not to be held responsible by a member of the public falling off a stile as is the case on CROW land. The difference in liability between Clauses 295 and 296 is considerable. What makes it worse is that the owner's liability extends to members of the public walking across coastal margins, not just the coastal route. We have already had some discussion about how members of the public should be able to expose themselves to risk if they choose, and that Natural England need not regard their safety when establishing limits of the coastal margin. Here it appears that the owner is still to be held responsible even in this area. I beg to move.

Photo of Lord Greaves Lord Greaves Spokesperson for Environment, Food and Rural Affairs, Spokesperson for Communities and Local Government

I tabled the question whether Clause 296 should stand part. I did that not because I wish to remove the clause but because, as the noble Earl, Lord Cathcart, has just admitted, nobody put down any amendments to it and that was the only way I could think of to be able to stand up and say something. I want to welcome the clause, so it was just a procedural device.

This matter takes us back to the debates we had on the CROW Bill nine years ago when there was quite a consensus across the Chamber that the reduced liability that owners and occupiers have under that legislation in relation to natural features should apply to all physical features. We never managed to get that to a vote for whatever reasons under the CROW Act, and in any case it was never passed. Since then, on CROW and access land the position has been that there is reduced occupier's liability as regards natural features but not as far as manmade physical features. One only has to think of crags that have been partly quarried and you start to ask what is manmade and what is natural. In the Derbyshire Edges you might go along the bottom of a crag and trip over a natural bolder. Then you might trip over a millstone that was left there when they stopped making millstones. Therefore, the distinction between the two is not very clear.

I want very much to welcome the fact that the land is defined as a physical feature of whatever kind and not just a natural feature. Looking to the future, I would hope that we might find an opportunity to amend the law on CROW access land to come into line with what will be the provisions on coastal access. That is for the future. In the mean time, I simply want greatly to welcome Clause 296.

As I think this is the last time I shall speak, probably in Committee but certainly on Part 9 of the Bill, I want to thank the Ministers, the Government and the Bill team for the huge amount of time, effort and co-operation that we have had from them on consideration of Part 9. I am sure that on this part of the Bill at least this effort has borne dividends in the huge amount of consensus there is in relation to it. It is very different from the CROW Bill nine years ago. On behalf of the Liberal Democrats I would like to thank the Government and all their people for the help we have had. We look forward to locking horns again on Report.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords 11:15 pm, 21st April 2009

I thank the noble Lord, Lord Greaves, both for his excellent contributions to our debates and for his kind words. I must immediately refer to my officials, who have worked very hard; I am glad that he has made those comments and I very much echo them. I am also grateful for his remarks on clause stand part, because in one sense they are a response to the noble Earl, Lord Cathcart. Essentially, he is posing the question of whether we got the balance right. I believe we have; I think it is a fair balance.

As someone who worries about this country developing into a risk-averse society, I think that one of the most striking outcomes of the public consultation on improving access to the coast was the real concern to ensure that there would not be any action that would result in a loss of the sense of freedom and wildness which make our coastline so attractive. People do not want to see overly managed paths and a plethora of warning signs every few yards. Of course, the coast can present hazards in places—we know that. But the fact is that over 70 million visits are made to what is described as the "undeveloped coast" each year. The vast majority of these are without incident.

Clearly, we do not want a risk-averse approach, but we do want to ensure that people do not unduly put themselves at risk. Clause 287 specifically requires Natural England and the Secretary of State to have regard to the safety and convenience of those using the English coastal route. The effect of the amendment of the noble Earl, Lord Cathcart, would be to remove subsections (1), (2) and (3) from Clause 295. They make it clear that no duty of care is owed by Natural England or anyone acting on its behalf under the law of negligence when preparing or proposing the coastal route. This is in connection with any failure by it to erect signs warning of hazards or to exclude or restrict access.

The aim of this clause is to clarify the legal position. Without it, it would be up to the courts to decide whether it was appropriate to impose a duty of care in any given case. Apart from the risk-averse behaviour that that might lead to, we think it highly unlikely that the court would impose such a duty. But we do think it prudent to set out the position clearly on the face of the legislation.

I believe that the approach we have set out in Clause 295 is measured; it reflects the position that many who responded to our public consultation wanted us to take. People must ultimately take responsibility for their own safety. We do not think it is appropriate or proportionate that Natural England or the Secretary of State should have a significant level of responsibility for accidents that may occur as a result of people choosing to use the new right of access to the coast.

The noble Earl, Lord Cathcart, was quite right then to refer to Clause 296 and to ask whether we got the balance right. We think we do, and the noble Lord, Lord Greaves, made some very important points in relation to that. The CROW Act itself limited the liability of occupiers of access land to those exercising the right of access in respect of risks arising from natural features, subject to some safeguards. That is where the occupier has not acted intentionally or recklessly. Recognising that there are many more non-natural features on the coast than are likely to be on open country, the responses to public consultation supported reduced liability to be extended to include other, non-natural features. This clause provides for that reduced level of liability, subject to safeguards that the occupiers have not acted intentionally or recklessly.

If, for example, a land owner or occupier has installed steps to a previously private beach for their own use, they would not, subject to safeguards which I have mentioned, be liable where a user of the right of access is injured using them. We think that the provision of reduced occupiers' liability is part of the fair balance that this Bill strikes between the interests of the public in having rights of access and the interests of owners and occupiers. The reduced liability will benefit occupiers of coastal land where there is already access. We think it will minimise the burden where new access is created. These provisions have been widely welcomed by landowners and users alike, which suggests that we have the balance right here.

Photo of Earl Cathcart Earl Cathcart Shadow Minister, Communities and Local Government, Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Scotland

I thank the Minister for clarifying the situation. I started by saying that the amendment was probing, and I thank the Minister for setting out the position so clearly. I beg leave to withdraw the amendment.

Amendment A364 withdrawn.

Clause 295 agreed.

Clause 296 : Occupiers' liability

Amendment A364A had been withdrawn from the Marshalled List.

Clause 296 agreed.

Clauses 297 and 298 agreed.

Clause 299 : Interpretation of this Part

Amendment A364B

Moved by Lord Livsey of Talgarth

A364B: Clause 299, page 191, line 18, at end insert—

""relevant functions" means in relation to Welsh Assembly Government

(i) its functions under Part 1 of the Countryside and Rights of Way Act 2000 (access to the countryside),

(ii) other functions as it considers it appropriate to exercise for the purposes of securing the objectives in (16.1) and (16.2)"

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson for Wales

Patience is a great virtue. We now come to the powers of the National Assembly for Wales in relation to the Bill. We feel that access is not wholly adequate from the point of view of recreation. We have consulted the British Mountaineering Council, which has concerns about rock climbing access and matters of that kind.

Amendment A364B would ensure that the issues contained in Matter 16.1 under Clause 300 concentrate on the functions of the National Assembly for Wales, or the Government of Wales. In fact, the Government themselves have moved to amend the Government of Wales Act 2006 with their own amendments and through clauses contained in the Bill. The Assembly does not have the power to do this, and we are seeking to amend some of the issues which the Government have raised in Clause 300.

Clause 300 recommends changes to the Government of Wales Act with the addition of Matter 16.1, which refers to the establishment of,

"a route (or a number of routes) for the coast".

Matter 16.2 seeks to secure,

"public access to relevant land for the purposes of open-air recreation".

The Welsh Assembly Government have already committed to Matter 16.1 with a coastal access improvement programme for the all-Wales coastal path. That was started in 2007 and is aimed at improving access to the coast for local communities and visitors through local path movements. The all-Wales coastal path is due to be completed by 2012, creating a walking route around the entire coast of Wales. This is a welcome development throughout Wales, and visitors to Wales universally welcome it.

However, there is a feeling that, in order to maximise increased public access to the coast and to match the real need on the ground, area coastal access is needed as well as linear access. That is essential to the coastal access provision for Wales, and the Welsh Assembly Government must seek to implement Matter 16.2 as soon as possible. This is the only way in which access for open-air recreation can be delivered. The linear route is felt to be too limited as an access option, as it does not provide for right of access to the shoreline, beaches or cliffs, and it is important that that is achieved. Equally, as noted, footpath access will not give users the right to leave the footpath and access the coast. Landowners and recreational groups both have reservations about the difficulties in managing access limited to a footpath. We have covered a lot of that already in our debates.

Amendment A364B establishes that there is a disparity between the coastal access regimes outlined for England and contained in this Bill and the coastal access improvement programme already being implemented in Wales. Clauses 286 to 299 outline measures to create a long-distance coastal path in association with that route and a margin of land along the length of the English coast accessible to the public for the purpose of enjoyment, in conjunction with that route or otherwise, and that this will be achieved through provisions outlined in the CROW Act 2000 and changes to the National Parks and Countryside Act 1949. Crucially, the legislation supporting the coastal access scheme for England stressed the desirability of that route adhering to the periphery of the coast and providing views of the sea. On the landward side, typical land forms such as dunes and cliffs will automatically be spreading.

This is very welcome, obviously, but our amendments—I am referring not only to Amendment A364B, but to Amendments A364C, A367A, A367B and A368A—achieve the following. Amendment A364C would insert:

"The Welsh Assembly Government must exercise the relevant functions in order to secure the following", objectives, which are mainly of a recreational nature. Amendment A367A replaces "relevant land" with,

"a margin of land along the length of the Welsh coast", which is what is desired and is in fact the case in the English parts of the Bill. This will ensure continuity and uses the same form of words as in Clause 286. Amendment A367B would insert, after "at the coast",

"or the foreshore or is land adjacent to the foreshore (including any cliff, bank, barrier, dune, beach or flat which is adjacent to the foreshore)".

In order to strengthen the meaning of "relevant land", a stronger form of words is used for clarity and certainty. The form of words is taken from Schedule 3 to the CROW Act 2000.

Finally, Amendment A368A will strengthen the need to ensure that coastal land falling under the definition set out in Section 3 of the CROW Act is included with any new right of access. What is interesting is that there are amendments to this part of the Bill from the Government and I am keen to establish what the synergy is between the government amendments and the amendments to which I have just referred. I beg to move Amendment A364B.

Photo of The Duke of Montrose The Duke of Montrose Shadow Minister, Scotland, Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Wales

The noble Lord, Lord Livsey, has worked his way very neatly round this whole question of Matter 16.1 and Matter 16.2, which are about to become Matter 16.2 and Matter 16.3, and there is ample room for confusion in all of that. I should be interested to hear the Minister explain his view, because it appeared to me that these amendments are saying that the Bill does not give the same power to the Welsh Assembly Government as it gives to the Secretary of State in England. I am surprised to hear that that is the case and I should be interested to hear what the Minister has to say on this matter. It was also interesting to hear the noble Lord say that it appears that the coastal route around Wales requires to be bigger and to contain more land than the coastal route around England. I do not know whether that is the policy of the Welsh Liberal Democrats or whether it has wider demands.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) 11:30 pm, 21st April 2009

I am grateful to the noble Lord, Lord Livsey, for initiating this limited debate and to the noble Duke, the Duke of Montrose, for his contribution. I will try to answer his point in a moment. Clause 299 confers important new legislative competence on the National Assembly for Wales in relation to public access to, and routes for, the Welsh coast. It will do this by providing framework or general powers for the National Assembly. The new powers in this clause will add two new matters to Part 1 of Schedule 5 to the Government of Wales Act 2006. The two matters will be added to Field 16, "Sport and recreation".

The first matter will enable the National Assembly for Wales to bring forward a measure or measures for the establishment and maintenance of a route, or a number of routes, for the coast of Wales to enable the public to make recreational journeys. The second matter will enable the National Assembly to make a measure or measures securing public access to relevant land, again for recreational purposes. Land will be "relevant land" if it is land at the coast or land which can be used in association with either land at the coast or a coastal route.

These provisions will support the Welsh Assembly Government's coastal access improvement programme, to which the noble Lord, Lord Livsey, referred. It is through that improvement programme that the Welsh Assembly Government intend to deliver a new all Wales coast path by 2012. The provisions will enable the National Assembly to legislate to provide new routes and secure new areas of land for public access at the coast of Wales, in addition to those delivered by the existing programme.

We have not reached this position without consultation and I have to report that the UK Government and the Welsh Assembly Government believe the framework powers provided for by Clause 300 provide the right legislative framework to underpin the Assembly Government's work. They would enable the Assembly Government to bring forward a proposed measure or measures, having consulted stakeholders on the best way forward for Wales. We feel reasonably secure in that position in terms of the intent of the Welsh Assembly Government and the fact that they agree that this is the way that it should be tackled in terms of their enhanced powers.

The amendments tabled by the noble Lord, Lord Livsey, would require the Welsh Assembly Government to exercise the relevant functions provided for under Part 1 of the Countryside and Rights of Way Act, and any other functions that they consider to be appropriate to secure those matters provided for under this clause. In addition, the amendments would amend the description of matters to be inserted in Schedule 5 to the Government of Wales Act to include,

"a margin of land along the length of the Welsh coast", and to add a description of coastal land.

With this clause, we are providing enabling powers for the National Assembly for Wales to bring forward legislation in the form of Assembly measures appropriate to Wales. The amendments would constrain the scope of the Welsh Assembly Government to propose Assembly measures in this area and would fetter the flexibility of the National Assembly to determine and reflect the needs and aspirations of Wales in improving public access to the coast. I cannot therefore see where the gain is meant to be. If there were a gain, I am sure that we would have heard from the Welsh Assembly Government already and I would not be able to talk with the degree of confidence I have about the agreed way forward. I fully share the motivations of the noble Lord, Lord Livsey, as I think everyone in Wales does—he already indicated just how much support there is for the concept—but we think we have done the spade work to guarantee that the Welsh Assembly Government will be able to pursue their measures and achieve their objectives by 2012 as they intend to do. I therefore hope he will accept that his amendments, which have prompted an interesting debate, are not necessary.

The noble Lord referred to some government amendments and asked whether they have any synergy with his amendments. I am not quite sure that I can define synergy when it comes to amendments, but I think the answer is no. The reason for this is quite straightforward; the amendments are minor and technical. They are there only because they are required as a result of the National Assembly for Wales (Legislative Competence) (Social Welfare and Other Fields) Order 2008, which came into force on 11 December 2008. This order inserted a new matter into Field 16 in Part 1 of Schedule 5 to the Government of Wales Act as Matter 16.1. As a result, these amendments are needed purely in order to renumber the matters in Clause 300 that will be inserted into that field. If the noble Lord can accept some synergy there, we end on a happy note of co-operation.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson for Wales

I thank the Minister for his response, which has clarified the situation considerably. It demonstrates that the framework powers contained in the Government of Wales Act 2006 enable the National Assembly and the Welsh Assembly Government to bring forward their own measures and to manage the coastal paths around Wales in a way that replicates the will of the people there.

The amendments were tabled because of concerns that there was a differential between the situation in England and the apparent situation in Wales. I have no doubt that this debate will appear on the record and that the Welsh Assembly Government will take account of the concerns that have been expressed. I hope that the access within the Welsh coastal area will take account of these sensitivities. Therefore, I beg leave to withdraw the amendment, and again thank the Minister for his response.

Amendment A364B withdrawn.

Clause 299 agreed.

Clause 300 : Powers of National Assembly for Wales

Amendment A364C not moved.

Amendments A365 to A367

Moved by Lord Hunt of Kings Heath

A365: Clause 300, page 191, line 24, leave out from "measures)" to "insert" and insert ", in field 16 (sport and recreation), after matter 16.1"

A366: Clause 300, page 191, line 25, leave out "16.1" and insert "16.2"

A367: Clause 300, page 191, line 34, leave out "16.2" and insert "16.3"

Amendments A365 to A367 agreed.

Amendments A367A and A367B not moved.

Amendment A368

Moved by Lord Hunt of Kings Heath

A368: Clause 300, page 191, line 42, leave out "16.1" and insert "16.2"

Amendment A368 agreed.

Amendment A368A not moved.

Clause 300, as amended, agreed.

Clauses 301 to 303 agreed.

Clause 304 : Works detrimental to navigation

Amendment A369

Moved by Lord Hunt of Kings Heath

A369: Clause 304, page 202, line 47, at end insert—

"(2) In section 105(2)(a) of that Act (instruments requiring draft affirmative procedure) after sub-paragraph (v) insert—

"(va) section 79N (power to make regulations in relation to persons appointed as inspectors etc),

(vb) section 79P (power to extend application of Part 4A),"."

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

This group of government amendments makes changes to the last parts of the Bill.

Government Amendments A369 and A372 have the same aims as Amendments A370 and A373 tabled by the noble Lord, Lord Taylor, and provide that the two order-making powers which Clause 304 inserts into the Energy Act 2008, setting out the powers of inspectors and the application of the provisions to Scotland, are subject to affirmative resolution procedures, as are orders made under Clauses 95 and 105. This follows recommendations made by the Delegated Powers and Regulatory Reform Committee. Moreover, I have added my name to Amendment A371 tabled by the noble Lord, Lord Taylor.

I turn briefly to the other government amendments in the group. As part of our move towards a one-stop shop, Schedule 20 to the Bill inserts a clause into the Harbours Act 1964 that enables the Secretary of State or other relevant authority to delegate the function of issuing harbour orders to another body. Amendment A370A inserts an additional provision into the Harbours Act that enables the relevant authority to delegate directly with respect to the performance of delegated functions under that Act.

Amendments A370T, A370U and A370V to paragraphs (5) and (6) of Schedule 20 make changes to ensure that the existing provisions in relation to devolution are not affected. The remaining amendments to Schedules 20 and 21 are minor, but essential to maintain the devolution settlement as it currently stands in relation to harbours, as well as, alas, to correct a grammatical error arising from the inclusion in Section 158A(1) of the Government of Wales Act of a definition of the Welsh zone.

The amendments to Clause 313 are required to reflect correctly the geographical extent of the Energy Act 2008 and the repeal of the Coastal Protection Act 1949, as well as to reflect the correct position regarding the effect of the amendments to and repeals of FEPA. I beg to move.

Photo of Lord Taylor of Holbeach Lord Taylor of Holbeach Shadow Minister, Environment, Food & Rural Affairs, Shadow Minister, Work & Pensions

I do not intend to speak for long, but I have some amendments in this group. Indeed, the Minister mentioned that he has added his name to Amendment A371, which we must not forget to move. We will come to it later, but so rare is this occurrence that the procedure is not one that I am particularly familiar with.

I should like to thank the noble Lord for accepting the rare recommendations of the Delegated Powers and Regulatory Reform Committee and for moving amendments to make several of mine unnecessary. There are two other amendments in my name, Amendments A370TA and A370TB, which relate to changes to the harbour order that the Government are implementing through this legislation. As we have heard, the Government are attempting to make sure that an objection to a change does not automatically lead to a public inquiry. This seems sensible, given that not every objection needs to result in one, but the changes must not be of such an extent as to allow legitimate and substantive objections to be fobbed off. Amendment A370TA seeks to give the objector the opportunity to confirm that he does in fact want a public inquiry and for that request to be given due consideration. Amendment A370TB considers whether it might not be useful for national representative organisations also to be able to make an objection in addition to the bodies already set out.

That is all I have to say on these amendments. I know that it is not customary to make long speeches of thanks at this stage of a Bill, but I would like to thank the Minister and the team supporting him for the help we have been given in trying to achieve consensus on the Bill, a point also referred to by the noble Lord, Lord Greaves. There has been strong agreement within the Committee to make this a better Bill, and indeed its Committee stage may well be one of the longest that we have ever had during the course of our parliamentary activities. However, it has certainly been productive. With that, I shall sit down.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson for Wales

Perhaps I may refer briefly to Amendment A370V, which states in proposed new subsection (4):

"If the objection was made by the Welsh Ministers to the Secretary of State, the Secretary of State must cause an inquiry to be held under sub-paragraph (3)(a)", which merely states that an inquiry can be caused to be held. I should like to know why Welsh Ministers cannot cause an inquiry to be held rather than the Secretary of State. It is a small but important point in the interpretation of the legislation.

Perhaps I may add my thanks to the Minister and the Bill team for carrying out their duties in bringing this Bill to its conclusion at this stage.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Environment, Food and Rural Affairs, Minister of State (Sustainable Development, Climate Change Adaptation and Air Quality), Department for Energy and Climate Change, Minister of State (Department of Energy and Climate Change), Minister of State (Department for Environment, Food and Rural Affairs) (Sustainable Development, Climate Change Adaptation and Air Quality) (also in the Department for Energy and Climate Change), Deputy Leader of the House of Lords

I thank both noble Lords for their generous remarks. It has been a very long Committee. This Bill had its Second Reading in December and we are nearly into May. But the thoroughness with which the Bill has been scrutinised in Committee means that we can look forward to a pithy Report, focusing on the key parts that noble Lords have identified that we need to come back to.

On the comment made by the noble Lord, Lord Livsey, we have to respect the devolution settlement. He may be weary of this being used as a response to his questions and amendments, but under paragraphs 18 and 28 of Schedule 3 to the Harbours Act 1964, which I am sure he is intimately aware of, Welsh Ministers can cause an inquiry to be held when the Secretary of State is determining a harbour order. These amendments are simply changing Schedule 20 to ensure that we do not remove this ability. They do nothing to undermine Welsh Ministers' ability to cause an inquiry to be held.

The noble Lord, Lord Taylor is right; we must remember to support Amendment A371. I did everything I could to show that it was technically defective because opposition amendments always are, but in this case I commend him on the quality of his drafting.

On Amendment A370TA the noble Lord is right to raise the issue that, in paragraph 10 of Schedule 3 to the Harbours Act, providers of an application must publish notice of their application for a harbour revision order. That notice must state that any person who wants to object should do so in writing to the Secretary of State, specifying the grounds of the objection within 42 days. Paragraph 19 of the same Schedule 3 places the Secretary of State under a duty to consider any objections made and not withdrawn before making a determination. I understand that objectors are keen to ensure that they get a chance to put in a supplementary submission if, for example, having discussed their objection with the applicants, their points are not fully met. In practice, once the initial objections and representations have been made, applicants will then either come to an agreement with the objectors or attempt to answer their points in a response to the Secretary of State. If there remains a disagreement, the Secretary of State will invariably seek a further view from the parties before proceeding to a decision. We think adding a requirement to seek the subsequent views of all objectors would add unnecessary complexity and delay to the process.

On Amendment A370TB, the wording of Schedule 20 is based on the last wording used in the Harbours Bill, which the noble Lord, Lord Berkeley, has introduced into this House on three occasions but which up to now has unfortunately not been enacted. Central to proposals to streamline the inquiry procedures—proposals which received wide support from noble Members during the passage of the Harbours Bill in previous Sessions—is the discretionary power for the relevant authority to hold an inquiry. In order to achieve the long-standing aims of these modifications, the list of bodies that can cause an inquiry needs to be kept to a justified minimum. That is why the conservation bodies which act as the Government's statutory advisers were added to the list in the Harbours Bill in 2003 to put additional environmental safeguards in place for what can be large complex developments. We would like to keep the list to those bodies at this stage.

I hope noble Lords will see these as constructive comments on the noble Lord's amendments. The government amendments are mainly for clarification and are a sensible tidying up of the Bill.

Amendment A369 agreed.

Amendment A370 not moved.

Clause 304, as amended, agreed.

Clause 305 agreed.

Schedule 20 : Amendments of the Harbours Act 1964

Amendments A370A to A370S

Moved by Lord Hunt of Kings Heath

A370A: Schedule 20, page 290, line 8, at end insert—

"42AA Directions as to performance of delegated functions

(1) This section applies where any functions are exercisable by or in relation to a person by virtue of an order made under section 42A by a relevant authority.

(2) The authority may from time to time give directions to the person with respect to the performance of the functions.

(3) A person to whom directions are given under this section must comply with the directions.

(4) An authority which gives a direction under this section must publish the direction in a manner likely to bring the direction to the attention of persons likely to be affected by it."."

A370B: Schedule 20, page 290, line 24, leave out "42A" and insert "42AA"

A370C: Schedule 20, page 290, line 28, leave out from "order" to end of line 29 and insert "which makes provision excluding, modifying or repealing—"

A370D: Schedule 20, page 290, line 30, after "Marine" insert "and Coastal Access"

A370E: Schedule 20, page 290, leave out line 37

A370F: Schedule 20, page 290, line 40, leave out "delegate" and insert "Secretary of State"

A370G: Schedule 20, page 290, leave out line 42 and insert—

"(4) The order or scheme must not include any provision falling within subsection (1) or, as the case may be, (2)"

A370H: Schedule 20, page 290, line 45, leave out "making of it" and insert "inclusion of that provision in the order or scheme"

A370J: Schedule 20, page 291, leave out lines 2 to 6

A370K: Schedule 20, page 291, line 13, leave out from "order" to end of line 14 and insert "which makes provision excluding, modifying or repealing—"

A370L: Schedule 20, page 291, line 15, after "Marine" insert "and Coastal Access"

A370M: Schedule 20, page 291, leave out line 22

A370N: Schedule 20, page 291, line 25, leave out "delegate" and insert "Welsh Ministers"

A370P: Schedule 20, page 291, leave out line 27 and insert—

"(4) The order or scheme must not include any provision falling within subsection (1) or, as the case may be, (2)"

A370Q: Schedule 20, page 291, line 30, leave out "making of it" and insert "inclusion of that provision in the order or scheme"

A370R: Schedule 20, page 291, leave out line 32

A370S: Schedule 20, page 291, leave out lines 36 to 39

Amendments A370A to A370S agreed.

Amendment A370T

Moved by Lord Hunt of Kings Heath

A370T: Schedule 20, page 291, line 44, leave out sub-paragraphs (2) to (4) and insert—

"(2) For sub-paragraph (1) substitute—

"(1) This paragraph applies if an objection to the application was made to the appropriate authority and has not been withdrawn.

(1A) This paragraph does not apply if—

(a) the appropriate authority decides that the application is not to proceed further,

(b) the appropriate authority considers that the objection is frivolous or trivial,

(c) the objection does not specify the grounds on which it is made, or

(d) the objection was not made within the period allowed for making it.

(1B) Before deciding the application under paragraph 19, the appropriate authority may—

(a) cause an inquiry to be held, or

(b) give to the person who made the objection an opportunity of appearing before, and being heard by, a person appointed by the appropriate authority.

(1C) If the objection—

(a) was made by the Welsh Ministers to the Secretary of State, and

(b) is not an objection regarding compulsory acquisition of a parcel of land, the Secretary of State must cause an inquiry to be held under sub-paragraph (1B)(a).

(1D) If, in a case where sub-paragraph (1C) does not apply,—

(a) the objection was made by a person within sub-paragraph (1E), and

(b) that person makes a request in writing to the appropriate authority that the objection be referred to an inquiry or dealt with in accordance with sub-paragraph (1B)(b), the appropriate authority must either cause an inquiry to be held under sub-paragraph (1B)(a) or cause the objection to be dealt with in accordance with sub-paragraph (1B)(b), as the appropriate authority may determine.

(1E) The persons within this sub-paragraph are—

(a) in the case of an application to the Secretary of State, the Welsh Ministers;

(b) any local authority for an area in which the harbour (or any part of it) is situated;

(c) the relevant conservation body;

(d) if the order will authorise the compulsory acquisition of land, any person who is entitled to be served with notice under paragraph 11.".

(3) In sub-paragraph (2)—

(a) for "sub-paragraph (1)(a)" substitute "sub-paragraph (1B)(b)",

(b) for "Secretary of State" substitute "appropriate authority", and

(c) for "he" substitute "the authority".

(4) In sub-paragraph (3)—

(a) for "Secretary of State" substitute "appropriate authority",

(b) omit paragraph (a), and

(c) in paragraph (b), for "he" substitute "the appropriate authority"."

Photo of Viscount Ullswater Viscount Ullswater Conservative

I must advise your Lordships that if Amendment A370T is agreed to I cannot call Amendments A370TA and A370TB because of pre-emption.

Amendment A370T agreed.

Amendments A370TA and A370TB not moved.

Amendments A370U and A370V

Moved by Lord Hunt of Kings Heath

A370U: Schedule 20, page 292, line 37, at end insert—

""the appropriate authority" means—

(a) in a case where the application was made to the Secretary of State, the Secretary of State;

(b) in a case where the application was made to the Welsh Ministers, the Welsh Ministers;"

A370V: Schedule 20, page 293, leave out lines 6 to 42 and insert—

""28 (1) This paragraph applies if an objection to the proposal was made to the proposing authority and has not been withdrawn.

(2) This paragraph does not apply if—

(a) the proposing authority decides that the proposal is not to proceed further,

(b) the proposing authority considers that the objection is frivolous or trivial,

(c) the objection does not specify the grounds on which it is made, or

(d) the objection was not made within the period allowed for making it.

(3) Before deciding the application under paragraph 29, the proposing authority may—

(a) cause an inquiry to be held, or

(b) give to the person who made the objection an opportunity of appearing before, and being heard by, a person appointed by the proposing authority.

(4) If the objection was made by the Welsh Ministers to the Secretary of State, the Secretary of State must cause an inquiry to be held under sub-paragraph (3)(a).

(5) Where—

(a) the objection was made by a person within sub-paragraph (6), and

(b) that person makes a request in writing to the proposing authority that the objection be referred to an inquiry or dealt with in accordance with sub-paragraph (3)(b), the proposing authority must either cause an inquiry to be held under sub-paragraph (3)(a) or cause the objection to be dealt with in accordance with sub-paragraph (3)(b), as the proposing authority may determine.

(6) The persons within this sub-paragraph are—

(a) any local authority for an area in which the harbour (or any part of it) is situated, and

(b) the relevant conservation body.

(7) Where an objector is heard in accordance with sub-paragraph (3)(b), the proposing authority must allow such other persons as the proposing authority thinks appropriate to be heard on the same occasion.

(8) In this paragraph—

"local authority" has the same meaning as in paragraph 18;

"the proposing authority" means—

(a) the Secretary of State, in a case where it is the Secretary of State who proposes to make a harbour revision order;

(b) the Welsh Ministers, in a case where it is the Welsh Ministers who propose to make a harbour revision order;

"the relevant conservation body" has the same meaning as in paragraph 18."."

Amendments A370U and A370V agreed.

Schedule 20, as amended, agreed.

Clause 306 : Regulations and orders

Amendment A371

Moved by Lord Taylor of Holbeach

A371: Clause 306, page 203, line 37, at end insert—

"( ) section 70;"

Amendment A371 agreed.

Amendment A372

Moved by Lord Hunt of Kings Heath

A372: Clause 306, page 203, line 38, at end insert—

"(ca) section 95(1) by virtue of section 95(2);

(cb) section 105;"

Amendment A372 agreed.

Amendments A373 and A374 not moved.

Clause 306, as amended, agreed.

Clauses 307 to 311 agreed.

Schedule 21 : Repeals

Amendments A374A to A379A

Moved by Lord Hunt of Kings Heath

A374A: Schedule 21, page 294, line 9, at end insert—

"Government of Wales Act 2006 (c. 32) In section 158(1), the word "and" preceding the definition of "Wales"."

A375: Schedule 21, page 295, line 6, leave out "147 and 148" and insert "148 and 149"

A376: Schedule 21, page 297, line 25, at end insert—

"The repeal of any enactment by Part 4 of this Schedule has the same extent as the enactment repealed."

A377: Schedule 21, page 297, line 31, at end insert—

"In Schedule 1, paragraphs 4(1) and 5."

A378: Schedule 21, page 298, line 7, leave out "In Schedule 1, paragraphs 4(1) and 5."

A379: Schedule 21, page 299, line 35, at end insert—

"Criminal Justice Act 2003 (c. 44) In Schedule 25, paragraph 70.
In Part 9 of Schedule 37, the entry relating to the Theft Act 1968 (c. 60)."

A379A: Schedule 21, page 300, line 36, at end insert—

"Harbours Act 1964 (c. 40) In Schedule 3, paragraph 18(3)(a)."

Amendments A374A to A379A agreed.

Schedule 21, as amended, agreed.

Clause 312 : Interpretation

Amendments A380 to A382 not moved.

Clause 313 : Extent

Amendments A383 to A389

Moved by Lord Hunt of Kings Heath

A383: Clause 313, page 209, line 13, at end insert—

"(iii) section 304 (which inserts Part 4A into the Energy Act 2008 (c. 32));"

A384: Clause 313, page 209, line 25, after "licensing)" insert ", other than paragraph 1 of Schedule 8"

A385: Clause 313, page 209, line 26, after "than" insert "section 142 and"

A386: Clause 313, page 209, line 40, after "licensing)" insert ", other than paragraph 1 of Schedule 8"

A387: Clause 313, page 209, line 41, after "than" insert "section 142 and"

A388: Clause 313, page 209, line 44, at end insert—

"( ) The amendments and repeals made by this Act to provisions of the Food and Environment Protection Act 1985 (c. 48) do not extend to any of the Channel Islands or any British overseas territory."

A389: Clause 313, page 209, line 45, after "Council" insert—

"(a)"

Amendments A383 to A389 agreed.

Amendment A390 not moved.

Amendments A391 and A392

Moved by Lord Hunt of Kings Heath

A391: Clause 313, page 209, line 46, after "licensing)" insert "or this Part, so far as relating to Part 4,"

A392: Clause 313, page 209, leave out line 47 and insert "territories specified in subsection (6A), and

(b) where any such provision is made in relation to any of those territories, repeal any provisions of Part 2 or 4 of the Food and Environment Protection Act 1985 (c. 48) (deposits in the sea etc) as they have effect as part of the law of that territory.

(6A) The territories mentioned in subsection (6) are—"

Amendments A391 and A392 agreed.

Amendments A393 and A394 not moved.

Clause 313, as amended, agreed.

Clauses 314 and 315 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 11.54 pm.