Guidance

Coastal access - Marine and Coastal Access Act 2009 – Part 9: Advice for inspectors

Published 1 March 2013

Applies to England and Wales

Only the courts can give an authoritative interpretation on any point of law, so this guidance has no legal force.

Introduction

Land is accessible to the public if it is land which is available for the purposes of open air recreation, by virtue of provision made under section 3A of the Countryside and Rights of Way Act 2000 (CROW Act). Access is subject to any exclusions or restrictions imposed by or under Part 1 of that Act (Access to the Countryside).

Part 9 of the Marine and Coastal Access Act 2009 (the 2009 Act) gives the Secretary of State and Natural England (NE) a duty to secure a long distance walking trail around the coast of England, together with appropriate ‘spreading room’ en route where people will be able to explore, rest or picnic.

NE will prepare a series of coastal access reports (“reports”) for the consideration of the Secretary of State, each containing proposals relating to a different stretch of the English coast. In doing this they will involve the relevant local access authority and will consult extensively with local interests. Wherever possible they will ‘walk the course’ with those whose land may be affected. They will also be able to put in place any necessary restrictions on public use if this proves necessary to avoid adverse effects on other land uses.

The first stretch will be a 20km stretch near Weymouth, which when opened will be of benefit to the 2012 Olympic Sailing events due to be held on that stretch of coast.

Legislation and Guidance

• Countryside and Rights of Way Act 2000 (the CROW Act)
• Marine and Coastal Access Act 2009 (the 2009 Act)
• National Parks and Access to the Countryside Act 1949 (the 1949 Act)
• Access to the Countryside (Coastal Margin) (England) Order 2010
• The Coastal Access Reports (Consideration and Modification Procedure) (England) Regulations 2010 (the regulations)
• Coastal Access – Natural England’s Approved Scheme
• Natural England’s Approved Scheme Natural England’s coastal access reports: Guidance on the Secretary of State’s decision making process, including the consideration of representations and objections - Defra

The Coastal Access Scheme

NE published its Coastal Access Scheme as approved by the Secretary of State on 23 March 2010, entitled Coastal Access – Natural England’s Approved Scheme.

This scheme sets out their approach to implementing the new rights around the coast, including how the trail will be aligned and how the new access rights will be managed.

Natural England must act in accordance with the approved Scheme (see section 298(1) of the 2009 Act). Inspectors must have regard to this when considering any objections.

The Implementation Process and Preparatory Work by Natural England

NE has identified that the key stages of the implementation process and its preparatory work are:

a. Identify issues and opportunities - achieving clarity through consultation with a range of organisations and individuals including those required by sections 51(4) and 55D(6) of the 1949 Act.

b. Walking the course – visiting the land identified in (a) that may be affected to discuss options.

c. Draft proposals – preparing a single (non-statutory) document to bring together draft proposals whilst taking into consideration (a) and (b).

d. Consultation on draft proposals – the document will be made available for anyone to comment on for a period of 12 weeks.

e. NE’s final report – will be produced taking into account the comments received at (d). The report must be submitted to the Secretary of State, advertised locally and published on the internet. Notice of the report must be given to various persons under paragraph 2(2) of Schedule 1A to the 1949, as inserted by Schedule 19 and section 302 of the 2009 Act.

f. Representations and objections – Anyone may make a representation to NE about the proposals in a report. Any owner, leaseholder or other lawful occupier of affected land will be able to make a formal objection to NE regarding the final report. Any objections and representations must be made on the relevant forms provided by NE (the forms are set out at Schedules 4 and 5 of the Coastal Access Reports (Consideration and Modification Procedure) (England) Regulations 2010). For an objection to be valid it must satisfy the conditions as set out in paragraphs 3(2) – (4) of Schedule 1A.

(See Appendix A for selected portions of relevant legislation)

3(2) For the purposes of this Schedule an objection is not an admissible objection unless it—

(a) satisfies the conditions in sub-paragraphs (3) and (4), and

(b) is made in accordance with any requirements imposed by regulations under sub-paragraph (7)(b).

3(3) The first condition is that the objection is made on the ground that the proposals in the report, in such respects as are specified in the objection, fail to strike a fair balance as a result of one or more of the following—

(a) the position of any part of the proposed route;

(b) the inclusion of proposals under subsection (2) of section 55B or the nature of any proposal under that subsection;

(c) the inclusion of, or failure to include, an alternative route under section 55C(2) or the position of any such alternative route or any part of such a route;

(d) the inclusion of, or failure to include, proposals under one or more of paragraphs (a) to (c) of section 55D(2) or the nature of any proposal made under such a paragraph;

(e) the inclusion of, or failure to include, a proposal under section 55D(5) or the terms of any such proposal;

(f) the exercise of a discretion conferred by section 301(2) or (3) of the Marine and Coastal Access Act 2009, or failure to exercise a discretion conferred by section 301(3) of that Act, in relation to a river.

3(4) The second condition is that the objection specifies the reasons why the person making the objection is of the opinion that a fair balance is not struck as a result of the matter or matters within sub-paragraph (3)(a) to (f).

3(5) An objection under this paragraph may propose modifications of the proposals in the report if the person making the objection considers—

(a) that those modifications would remedy, or mitigate the effects of, the failure to strike a fair balance to which the objection relates, and

(b) that the proposals as so modified would satisfy the requirements of sub-paragraph (6).

3(6) Modified proposals satisfy the requirements of this sub-paragraph if what they propose—

(a) is practicable,

(b) takes account of the matters mentioned in section 297(2), and (where appropriate) section 301(4), of the Marine and Coastal Access Act 2009 (matters to which Natural England and the Secretary of State must have regard when discharging the coastal access duty), and

(c) is in accordance with the scheme approved under section 298 of that Act (the scheme in accordance with which Natural England must act when discharging the coastal access duty) or, where that scheme has been revised, the revised scheme.

Consideration of Objections to Natural England’s report by the appointed Inspector

The Inspector, appointed on behalf of the Secretary of State, will consider any objections which have been made to the proposals in a report.

The 2009 Act does not allow NE to amend their final report in response to objections and representations received after it has been published.

Objections and Representations have been made

NE must send to the Secretary of State a copy of any objection which it has received. The Secretary of State will then appoint a person to determine that objection.

Once the Secretary of State has appointed an Inspector, the Secretary of State will send the Inspector a copy of any objections to the proposals in the report.

The Inspector must determine whether or not the objection is an admissible objection by having regard to the conditions noted in paragraph 9(f) above and must give notice of that determination together with the reasons for it to:

• The person who made the objection
• The Secretary of State, and
• NE

In the notice to NE the Inspector may request them to provide further information (as per paragraph 6(2) of Schedule 1A).

If the Inspector deems the objection to be an admissible objection the Secretary of State must send the Inspector the following:

• A copy of the report to which the objection relates
• A copy of NE’s comments on the objection received
• A copy of any representations received under paragraph 8(1)(a) of Schedule 1A that the Secretary of State considers relevant to the objection, and NE’s comments on them
• A copy of any summary of representations made under paragraph 8(1)(b) of Schedule 1A that the Secretary of State considers relevant to the objection, and NE’s comments on them.

Consideration of admissible objections by the Inspector

The Inspector must determine whether the proposals set out in the report fail to strike a fair balance in the respects specified in the objection. If it can be demonstrated that there is a need, the Inspector may feel that a site visit is necessary.

If the Inspector is minded to find that the proposals fail to strike a fair balance the Inspector must publish a notice (see Schedule 6 of the regulations) containing the following:

• Details of the objection and NE’s comments on it
• A statement that the Inspector is minded to determine that the proposals fail to strike a fair balance in respect of that objection
• Invitation for representations to be made with regard to:
  • The objection including any modifications of the proposals proposed by the objection.
  • Any relevant alternative modifications contained in NE’s comments on the objection.
  • Any observations which the Inspector has made in the notice with regard to any such relevant alternative modifications or any modifications proposed by the objection.
• Details of where the documents can be seen and the date for submission of any representations on them.

A copy of this notice must also be given to:

• NE
• each relevant access authority
• each relevant local access forum
• the Historic Buildings and Monuments Commission for England
• the Environment Agency
• any other person that the Secretary of State specifies in regulations (see Schedule 1 of the regulations)

and any person with a relevant interest in:

• the affected land to which the objection relates, or
• the land that would become affected if any of the modifications referred to were made to the proposals

Consideration of objections and representations received with regard to the Inspector’s advertised consideration of failing to strike a fair balance

The Inspector will consider any further representations received. He may decide to consider the objection and any representations relevant to the objection by means of a written representations procedure or he may decide to hold a hearing or an inquiry. A site visit may be necessary. See Appendix B for procedural criteria.

Recommendations of the Inspector to the Secretary of State

Following any written representations process, hearing or inquiry the Inspector will write a report on that objection to the Secretary of State. This report must:

a. set out that determination, and

b. make one or more recommendation with regard to it.

Does not fail to strike a fair balance

If the Inspector finds that the proposals in NE’s report do not fail, in the respects specified in the objection, to strike a fair balance the Inspector must recommend that the Secretary of State makes a determination to that effect.

Fails to strike a fair balance

If the Inspector finds that the proposals in NE’s report fail, in the respects specified in the objection, to strike a fair balance the Inspector must consider whether there are any modifications of the proposals which would meet the coastal access requirements. Modifications that meet the coastal access requirements are those that:

a. remedy the failure to strike a fair balance identified by the objection, and

b. produce proposals which satisfy paragraph 3(6) of Schedule 1A.

The Inspector must:

a. recommend that the proposals fail, in the respect set out in an objection, to strike a fair balance and say why no modification would satisfy the coastal access requirements, or

b. recommend that, if minded to approve the proposals, the Secretary of State approves them with the modifications described in the recommendations, which would satisfy the coastal access requirements, and say why, or

c. recommend that, if minded to approve the proposals, the Secretary of State considers whether the recommended modifications would meet the coastal access requirements and say why.

Appendix A – Selected portions of relevant legislation

[S51 of the 1949 Act]

(1) Where it appears to the Agency, as respects any part of England, that the public should be enabled to make extensive journeys on foot or on horseback or on a bicycle not being a mechanically propelled vehicle along a particular route, being a route which for the whole or the greater part of its length does not pass along roads mainly used by vehicles, the Agency may prepare and submit to the Minister a report under this section.

(2) A report under this section shall contain a map showing the route, defining those parts thereof over which there exists a public right of way, and indicating in each case the nature of that right; and the report shall set out such proposals as the Agency may think fit—

(a) for the maintenance or improvement of any public path or road used as a public path along which the route passes;

(b) for the provision and maintenance of such new public paths as may be required for enabling the public to journey along the route;

(c) for the provision and operation of ferries where they are needed for completing the route; and

(d) for the provision of accommodation, meals and refreshments along the route.

(3) A report under this section may also include such recommendations as the Agency may think fit for the restriction of traffic on existing highways along which the route passes.

(4) Before preparing a report under this section the Agency shall consult every National Park authority, joint planning board, county council, and county district council through whose Park or area the route passes; and it shall be the duty of every such authority, board or council to furnish to the Agency such information as the Agency may reasonably require for the purposes of the report.

(5) A report under this section shall contain an estimate, in such form as the Minister may require, of the capital outlay likely to be incurred in carrying out any such proposals contained therein as are mentioned in subsection (2) of this section, of the annual cost of maintaining any existing public paths or roads used as public paths along which the route passes and any new public paths provided for by the proposals, and of the annual expenditure likely to be incurred by local authorities and National Park authorities in connection with the provision and operation of ferries, and the provision of accommodation, meals and refreshments, so far as those matters are provided for by the proposals.

[S55 of the 1949 Act]

(1) Where proposals relating to a long-distance route have been approved by the Minister under section fifty-two of this Act, the Agency may from time to time prepare and submit to the Minister a report proposing any such variation of the approved proposals as the Agency may think fit.

(2) Where, as respects any proposals approved as aforesaid, it appears to the Minister, after consultation with the Agency, expedient that the proposals should be varied in any respect and the Agency have not submitted to the Minister a report proposing that variation, the Minister may direct that the proposals shall be so varied.

(3) Subsection (4) of section fifty-one of this Act, and subsections (1) and (2) of section fifty-two thereof, shall with the necessary modifications apply to a report or direction under this section; and subsection (5) of the said section fifty-one shall with the necessary modifications apply to any such report.

(4) Where the Minister approves, with or without modifications, any proposals contained in a report under subsection (1) of this section, or gives a direction under subsection (2) of this section, the proposals for the variation of which the report was made or direction given shall thereafter have effect subject to the provisions of the report or direction; and references in this Act to approved proposals relating to a long-distance route shall be construed accordingly.

[S55A(3), (4) and (5) of the 1949 Act as inserted by section 302 of the Marine and Coastal Access Act 2009]

(3) In subsections (4) and (5) “preliminary activity” means activity which Natural England considers would facilitate the preparation by it of a report under section 51 pursuant to the coastal access duty.

(4) Where Natural England considers it necessary or expedient for preliminary activity to be carried out as respects any land, it must—

..(a) consider whether it would be appropriate for the access authority in relation to that land to carry out any of the preliminary activity, and ..(b) if it concludes that it would be so appropriate, take all reasonable steps to enter into an agreement with the access authority for that purpose.

(5) An access authority may, as respects any land in its area, enter into an agreement with Natural England under which the access authority undertakes to carry out preliminary activity.

[S55B of the 1949 Act, as inserted by section 302 of the Marine and Coastal Access Act 2009]

(2) Where Natural England considers that the area through which the route passes is an area to which subsection (3) applies, the report may set out proposals for the route, or any part of it, to be determined at any time in accordance with provision made in the proposals (rather than as shown on a map).

(3) This subsection applies to an area if it is or may be—

(a) subject to significant coastal erosion or encroachment by the sea, or

(b) subject to significant physical change due to other geomorphological processes.

(4) The provision made by virtue of subsection (2) may, in particular, provide for the route to be determined by reference to the edge of a cliff or boundary of a field (as it exists from time to time).

(5) Where the report contains proposals under subsection (2), the map included in the report in accordance with section 51(2) must show the route as determined, at the time the report is prepared, in accordance with those proposals.

[S55C of the 1949 Act, as inserted by section 302 of the Marine and Coastal Access Act 2009]

(2) The report may include, in relation to the route (“the ordinary route”) or any part of it, a proposal under subsection (3) or (4).

(3) A proposal under this subsection is a proposal for an alternative route which is to operate as a diversion from the ordinary route, or part, during one or both of the following—

(a) any specified period (or periods), and

(b) any period during which access to the ordinary route or part is excluded by reason of a direction under Chapter 2 of Part 1 of the CROW Act (exclusion or restriction of access).

(4) A proposal under this subsection is a proposal for an alternative route which is to operate as an optional alternative to the ordinary route, or part, during any period for which the ordinary route, or part, might reasonably be regarded as unsuitable for use by reason of—

(a) flooding,

(b) the action of the tide,

(c) coastal erosion or encroachment by the sea, or

(d) the effect of any other geomorphological process.

(5) In subsection (3)(a) “specified” means—

(a) specified in, or determined in accordance with, the proposal, or

(b) determined in accordance with the proposal by—

(i) a person specified in the proposal, or

(ii) a person determined in accordance with the proposal, details of whom are notified to Natural England in accordance with the proposal.

[S55D of the 1949 Act, as inserted by section 302 of the Marine and Coastal Access Act 2009]

(2) The proposals set out in the report may include—

(a) a proposal for any part of the landward boundary of the relevant coastal margin to coincide with a physical feature identified in the proposal,

(b) where those proposals include an alternative route, a proposal for any part of the landward or seaward boundary of the alternative route strip to coincide with a physical feature so identified, or

(c) a proposal for the landward or seaward boundary of any area excluded from any description of excepted land to coincide with a physical feature so identified.

(3) The report must contain—

(a) a map showing the landward boundary of the relevant coastal margin, or

(b) a description of that boundary which is sufficient to identify the relevant coastal margin.

(4) Where a map is contained in a report pursuant to subsection (3)(a), Natural England must provide a person with a relevant interest in affected land, on request, with a copy of that map.

(5) The report must set out such proposals (if any) as Natural England considers appropriate as to the directions to be made by it under Chapter 2 of Part 1 of the CROW Act for the exclusion or restriction of the right of access that would arise under section 2(1) of that Act in relation to any land if the proposals in the report were to be approved.

[S297 of the 2009 Act]

(1) In discharging the coastal access duty, Natural England and the Secretary of State must comply with the requirements of this section.

(2) They must have regard to—

(a) the safety and convenience of those using the English coastal route,

(b) the desirability of that route adhering to the periphery of the coast and providing views of the sea, and

(c) the desirability of ensuring that so far as reasonably practicable interruptions to that route are kept to a minimum.

[S298 of the 2009 Act]

(1) Natural England must—

(a) prepare a scheme setting out the approach it will take when discharging the coastal access duty, and

(b) submit the scheme to the Secretary of State.

(2) The Secretary of State may—

(a) approve the scheme, with or without modifications, or

(b) reject the scheme and give Natural England a notice requiring it to prepare and submit a new scheme under subsection (1).

(3) The scheme must be submitted to the Secretary of State within the period of 12 months beginning with the day on which this section comes into force or, in a case within subsection (2)(b), within the period specified in the notice.

(4) Natural England may, with the approval of the Secretary of State, revise a scheme approved under this section.

(5) A scheme approved under this section (and any revised scheme) must set out the approach Natural England will take when deciding, for the purposes of section 55A(4) of the 1949 Act, whether it would be appropriate for an access authority to carry out any preliminary activity (within the meaning of section 55A(3) of that Act).

(6) The Secretary of State must lay before Parliament a copy of the scheme approved under this section and, where that scheme is revised, a copy of the revised scheme.

(7) Before preparing or revising a scheme under this section, Natural England must consult such persons as it considers appropriate.

(8) Natural England must, as soon as reasonably practicable, publish in such manner as it considers appropriate—

(a) the scheme approved by the Secretary of State, and

(b) where that scheme is revised, the revised scheme.

(9) In discharging the coastal access duty, Natural England must act in accordance with the scheme approved under this section (or, where that scheme has been revised, the revised scheme).

(10) Until such time as there is an approved scheme under this section, Natural England may not prepare or submit a report under section 51 or 55 of the 1949 Act (report containing proposals for long-distance routes) pursuant to the coastal access duty.

(11) Nothing in subsection (10) prevents Natural England from surveying any land in connection with the preparation of such a report.

[S301 of the 2009 Act]

(2) Natural England may exercise its functions as if the references in the coastal access provisions to the sea included the relevant upstream waters of the river.

(3) For this purpose “the relevant upstream waters”, in relation to a river, means—

(a) the waters from the seaward limit of the estuarial waters of the river upstream to the first public foot crossing, or

(b) if Natural England so decides, the waters from the seaward limit of the estuarial waters of the river upstream to such limit, downstream of the first public foot crossing, as may be specified by it.

(4) When exercising any power conferred by subsection (2) or (3), Natural England must have regard to the following matters (in addition to the matters mentioned in section 297(2))—

(a) the nature of the land which would, for the purposes of this Part, become part of the coast of England if Natural England exercised the power in subsection (2) in respect of the relevant upstream waters for the limit under consideration;

(b) the topography of the shoreline adjacent to those waters;

(c) the width of the river upstream to that limit;

(d) the recreational benefit to the public of the coastal access duty being extended to apply in relation to the coast adjacent to those waters;

(e) the extent to which the land bordering those waters would, if it were coastal margin, be excepted land;

(f) whether it is desirable to continue the English coastal route to a particular physical feature (whether of the landscape or otherwise) or viewpoint;

(g) the existence of a ferry by which the public may cross the river.

Appendix B – Procedural Criteria

Written representations

If your objection meets the following criteria, the most appropriate procedure would be written representations:

• the grounds of objection and issues raised can be clearly understood from the objections; and
• the Inspector should not need to test the evidence by questioning or to clarify any other matters face to face.

Hearings and Inquiries

We cannot be prescriptive about when a hearing or inquiry will be held, rather than the case being decided by written representations, as the procedure for each case must be decided on its own merits.

In general, however, a hearing will be arranged where it seems:

• the evidence put forward to the Inspector would be best explored in more depth in an informal discussion led by the Inspector;
• there is no need for evidence to be tested by formal cross-examination;
• the issues are straightforward (and do not require legal or other submissions to be made) and you should be able to present your own case (although you can choose to be represented if you wish); and
• your case and that of other interested persons e.g. Natural England or the access authority is unlikely to take more than one day to be heard.

An inquiry will be necessary where:

• the issues are complex;
• formal cross-examination of witnesses is required;
• legal submissions may need to be made; or
• evidence may be given by expert witnesses.