Marine and Coastal Access Bill [HL]

My Lords, I oppose the amendment in the name of the noble Lord, Lord Goodlad; we are prepared to support the government amendments. If we go right back to the Bill's introduction to this House—and before, when we were discussing it in pre-legislative forums—a strong view was put forward by Natural England, the recreational groups and everyone else that we do not want the precise system of appeals that we have under the CROW Act, because they have been time-consuming, expensive and, in many cases, have not produced the right results. They are based on the appeal system under the planning system; the system is almost exactly the same. That may be appropriate for planning, but it has turned out not to be too good for CROW land. The other side of the argument was that people with land rights ought to have a right of appeal to an independent tribunal where they can put their views forward and where their objections can be independently and objectively assessed in a fair, reasonable and transparent way. I believe that both those points of view were correct. I had arguments with my friends in the recreational user groups, for example, because it seems to me as a Liberal that not having independent system of appeal was quite wrong. I believe that the government amendments that were agreed on Report go a long way to providing a system that provides both those requirements. I also believe that the amendments that the Government are putting forward today are a further step towards a system which is acceptable and workable. It clearly has to be both. I listened very carefully to the case that the noble Lord, Lord Pannick, put forward, which was persuasive as usual. His amendment talks about exceptional circumstances. The noble Lord said that it seeks to make the position clear. I do not agree that the words "exceptional circumstances" make the position clear at all, because there is no definition of what these are. He went on to say that it is a "broad and general statement" as to what they would be. The Government seem to be putting this forward fairly specifically, and I welcome that. The noble Lord referred to four specific criteria. I find myself in a slightly difficult situation at the moment because I am speaking to a government amendment that has not yet been moved by the Government, and I do not wish to do that for them. B, C and D seem to be cases where the decision of the inspector is wrong, for the reasons set out, and that can be clearly established, but decision A, which the noble Lord, Lord Pannick, did not like, seems crucial because it introduces the concept of the public interest, as well as the private interest of the people with interests in the land. It does what I have been trying to get the Government to do for some time, which they have been resisting in Committee and on Report—to relate the whole question of fair balance, which is the criteria they have got, between the perfectly proper interests of landowners and others with interest in land, the perfectly proper interests of recreational users, and the public interest in creating the coastal route. I have been trying to relate that concept of fair balance to the fundamental objectives of the coastal duty, as set out in Clause 289(2), which are the requirements to provide the route and the coastal margin or access land. The Government are now doing that. They are setting the work of the inspector and the decision of the Secretary of State on the basis of the inspector’s report, firmly in the context of the coastal duty. That is right and proper. Some of that is not and cannot be factual. It is a matter of assessment, opinion and judgment. That is where, surely, the Secretary of State ought to have discretion. The noble and learned Lord, Lord Morris, referred to planning appeals. He is absolutely right. In the ward that I represent on the local council, two or three years ago there was an infamous planning application for a new housing estate, and the decision took about three years. The local council turned it down, it went to appeal, the inspector found in favour of the appellants, it went to the Secretary of State, who at the time was the Deputy Prime Minister, and it sat on his desk for about two years. Eventually, he overturned the decision and recommendation of the inspector. He did it, whether right or wrong, for reasons of overriding public, government and planning policy. Indeed, he did it for reasons which did not exist when the appeal took place. If the amendment proposed by the noble Lord, Lord Goodlad, were to be accepted in its present form, it would leave it wide open for any landowner to seek to wreck the scheme and the coastal route proposals in any particular place. If we have an overriding coastal access duty to provide the route, it ought not to be open to one particular landowner to block one part of the coastline simply because it is not for his personal convenience. I accept that cases will arise where people are aggrieved about the line of the route and the access land, but under those circumstances there must be an overriding consideration that the route should go through. People cannot be allowed simply to block it because they do not like it, and that is what would happen if we had CROW-type appeals. The Government briefing—again I run the risk of speaking to their amendment before they do—puts forward the case that the Secretary of State must have the right to look at a whole stretch of route and not the particular piece of land that is being appealed, which is what happens in CROW cases. The requirement that there should be consistency when it comes to headlands, estuaries and so on must be right. It cannot be open to objectors in particular places to argue a sui generis case for themselves independent of what happens with the rest of the route. Consistency is important. The idea that one narrow piece of land could be considered on its own and be binding on the Secretary of State is surely wrong. If the movers of the amendment are saying that these would be exceptional circumstances, they ought to propose the much clearer wording set out in the government amendment. Facts are facts. Many of the decisions that will have to be made on where the access land should come from and where the route should go will be matters of judgment of the particular circumstances of the case. Attempts should be made to reach agreement between the parties, but where it cannot be reached, the overriding consideration should be that the public interest and that of this legislation must prevail. That is not the case in CROW appeals where the vegetation on the land is a matter of fact whether it is mountain, heath, moor or down. Opinions come into it, but the land is either heather or it is not, either crops are being grown on it or it is natural grassland. Factual decisions are much easier to reach, but they will be much more difficult to make on the coast. Therefore I am afraid that the amendment of the noble Lords, Lord Goodlad and Lord Pannick, although probably unintentionally, is a wrecking amendment. I am astonished at how far the Government have been able to go in order to satisfy the case put forward by the various committees on human rights and the constitution, and it is right that they have done so. They have gone 95 per cent of the way and there comes a time when people should say thank you very much rather than try to push for the extra 5 per cent that, in my view, runs the risk of wrecking this great project.