August 1, 2008

Landowners Must Be Alert to New Bill ; T First Glance, the Government’s Plan to Create a Continuous 2,500- Mile Trail Around England’s Coastline Appears Laudable Enough. Part of a Manifesto Pledge Made in 2005, the Rationale is That the Coast Offers a Div

T first glance, the Government's plan to create a continuous 2,500-mile trail around England's coastline appears laudable enough. Part of a manifesto pledge made in 2005, the rationale is that the coast offers a diverse range of recreational activities but around 30 per cent has no access at all, and of the remaining 70 per cent, access is often fragmented.

The plan is to invest pounds50 million over the next 10 years to fill in these gaps and create a continuous managed route, aimed mainly at walkers but accommodating other activities such as cycling and horse riding, through local agreements with landowners.

The Government charged its rural champion Natural England to look at how this could be achieved, and its findings are now part of the draft Marine Bill, through which the coastal access plans would be enshrined in law.

The proposals prompted alarm among landowners, including the National Farmers' Union and the Country Land & Business Association (CLA), because the Bill, as drafted, had a presumption against paying any compensation, with no formal appeals process.

The CLA warned that, in Devon and Cornwall, the impact could cost the rural economy millions of pounds, and the Royal Institution of Chartered Surveyors predicted that it would wipe 20 per cent off coastal property values.

Natural England caused the Government a major problem by revealing before a committee of MPs scrutinising the Bill that it believed the route should be able to cross private paths and gardens.

And there was outrage when it disclosed that it had identified 4,300 private houses next to the sea and 700 estates and parks where access may be necessary in order to create a continuous route.

Despite the best efforts of Defra Minister Jonathan Shaw to reassure MPs that parks and gardens would be sacrosanct, save for voluntary local agreements, Natural England had already sown the seeds of deep mistrust among landowners in the Westcountry.

For many in the Westcountry, the coastal access plans also look a little odd when we already have a 630-mile coastal path that generates an estimated pounds300 million a year for the region's economy.

But Natural England's proposals amount to much more than just a coastal path and it wants to plug the gaps. At a minimum, the corridor will be four metres wide and will also include land to the seaward side of the route and potentially some areas on the landward side.

That's why many objectors breathed a sigh of relief last week when the Environment, Food and Rural Affairs Committee (EFRA) said that landowners, businesses and farmers should be entitled to compensation if they could demonstrate a financial loss as a result of the route.

MPs also said that the lack of a formal appeals procedure was a "fundamental weakness" of the draft Bill and recommended that landowners and occupiers have the right to an independent, third- party appeal process.

Without this, MPs argued, the Bill would never command widespread landowners' confidence because the current "leave it all to Natural England" approach would only result in continued scepticism.

If the final Bill does include a process for claiming compensation - and it's a big "if", because Defra has only said it will carefully consider the views expressed by MPs - there are a number of points that landowners need to think about.

There may be a claim for loss of profit, for example a reduction in business for a holiday cottage or hotel that can prove its income has been reduced as a result of the coastal route.

However, the onus is always on the landowner, business or farmer to quantify and prove the losses before submitting a claim, so it will be important to keep accurate records and seek professional advice.

Landowners may also be able to bring a claim for disturbance on their land if Natural England needs access to erect styles, fences, steps, bridges or carry out drainage works for example, and there may be scope to claim if the land has not be properly reinstated after these works.

The most likely claim is to diminution in value to a property because of the coastal route.

Another option for landowners is to appeal against the route at the mapping stage. Natural England has said it will consult with local interests and landowners in deciding the most appropriate route.

But in practice - and from my experience in handling a number of successful landowners' appeals when the right to roam legislation was introduced through the Countryside Rights of Way Act 2000 (CRoW) - mistakes are often made with mapping.

Land that should be exempted can sometimes be included in error because it has not been properly categorised, or the map may simply be wrong. So unless landowners are properly advised about whether their land can be exempted from the access provisions and are on the ball at the mapping stage, they could find their land being wrongly included in the proposed route.

Like the CRoW Act, the new Marine Bill does include a number of "excepted" land categories, such as land covered by buildings, railways, racecourses, and aerodromes, and there are some partial exceptions.

However, it also seeks to scrap some excepted land designations currently covered by CRoW, including land within 20 metres of a dwelling or a building used to house livestock, which raises the prospect of walkers being allowed much nearer people's homes and buildings.

Landowners, homeowners and businesses should seek advice in identifying excepted categories.

There is no doubt that the Westcountry's natural environment is one of our region's greatest assets, and anything that provides additional sensitive access in such a way that benefits the regional economy should be welcomed, but only if the interests of landowners are properly protected.

Richard Baker is a partner in the commercial property team at regional law firm Stephens Scown and has considerable expertise in rural land use and agriculture issues.

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