The coastal access duty
Section 296: The coastal access duty
731.This section imposes a duty (described by subsection (4)(a) as the “coastal access duty”) on the Secretary of State and Natural England. Subsections (2) and (3) describe the duty by reference to two objectives.
732.Subsection (2) contains the first objective, which is that there is a route around the whole of the English coast consisting of one or more long-distance routes and available to the public for recreational journeys on foot or by ferry (“the English coastal route”).
733.Subsection (3) contains the second objective, which is that there is a margin of land along the length of the coast which the public may enjoy. It requires a margin to exist “in association with” the route, and provides that, subject to the exception mentioned below, the margin of land is to be “accessible to the public for the purposes of its enjoyment by them in conjunction with that route or otherwise”. This makes it clear that the route and the margin are linked objectives, but also that the margin does not have to be accessed directly from the route. It may be accessed from another part of the margin (for example by walking along the foreshore to reach an isolated beach) or using a right of access under other legislation, such as a public right of way, or by other means. The exception to the requirement for the margin to be accessible to the public is the case where the land falls within any category of “excepted land” listed in Schedule 1 to the Countryside and Rights of Way Act 2000 (“the CROW Act”), other than a category of land which is accessible to the public by virtue of any enactment or rule of law (as to which see the note to subsection (5)(c)). This formulation enables the margin to be proposed and established without the need to describe individually every area which is not accessible to the public. This is because Schedule 1 to the CROW Act (which may be amended by an order under section 3A of that Act to be inserted by this Act) sets out general categories of land to which there is no access.
734.Subsection (4)(b) allows Natural England and the Secretary of State to fulfil the duty in stages over a number of years. This means that the duty may be fulfilled on certain parts of the coast before other parts, and there is no set time limit for completion of the duty.
735.Subsection (5) establishes that land will only be considered accessible to the public (as specified in the objectives) if it is accessible in certain ways. Subsection (5)(a) provides that one way in which it will be considered accessible to the public is if it is accessible by virtue of section 3A of the CROW Act. This means that, for land to be accessible to the public under subsection (5)(a), access must be available under the right of access conferred by section 2(1) of the CROW Act, and this must be by virtue of it being coastal margin as defined in the new section 3A of the CROW Act (see section 303). So land which is accessible under the CROW Act but which is not coastal margin will not fulfil the duty. The reason for this distinction is that certain aspects of the management regime for access land under the CROW Act may differ according to whether the land is coastal margin or other access land. Subsection (5)(a) goes on to say that this is subject to any exclusions or restrictions imposed by or under Part 1 of the CROW Act. Part 1 of the CROW Act deals with access to the countryside, and allows relevant authorities to make directions excluding the right of access or restricting it in certain ways (for instance the right might be exercisable only along certain routes). So subsection (5)(a) makes it clear that such exclusions or restrictions may be disregarded for the purpose of deciding whether the route passes over land which is accessible to the public and there is a margin of land which is accessible to the public.
736.Subsection (5)(b) is another category of land which is considered accessible to the public for the purposes of this section. This is land which falls under any of the enactments or instruments specified in section 15 of the CROW Act. These enactments and instruments all provide for public access on foot and in some cases provide higher rights of access, for example on horseback. An example of this is section 193 of the Law of Property Act 1925, which regulates certain commons and has been held by the High Court in the case of R v Secretary of State for the Environment ex parte Billson(12) to provide rights on horseback.
737.Subsection (5)(c) provides that land will be considered accessible to the public where it is excepted land under the CROW Act (certain types of land set out in Schedule 1 to that Act), but only where it is accessible to the public by virtue of any other enactment or rule of law. The most common situation where this may apply is where the coastal route goes along a public highway. In order to avoid having two different access regimes applying to public highways, it is expected that the public highways will become a category of excepted land under the CROW Act as far as the coastal margin is concerned. Subsection (5)(c) therefore allows the English coastal route to follow a public highway, for example through built-up areas. However this does not apply to land which is accessible to the public by virtue of a military lands byelaw as defined in subsection (8) (one of the categories of excepted land) and such land may therefore never form part of the route.
738.Subsection (6) makes it clear that the duty of Natural England and the Secretary of State to exercise their relevant functions regarding the second objective (making available a margin of land along the length of the English coast) refers to making land accessible to the public by means of section 3A of the CROW Act, as described in subsection (5)(a). Land within the margin may be accessible to the public under the mechanisms described in subsections (5)(b) and (c). However, if land is not accessible to the public, the only mechanism which Natural England and the Secretary of State are required to use to make it so accessible is the mechanism described in subsection (5)(a), (provision under section 3A of the CROW Act), although they may decide to use other mechanisms. This reflects the fact that the legislation envisages that so far as any new right of access needs to be created to provide the coastal margin, the principal means of creating it is by way of an order under section 3A of the CROW Act (as inserted by section 303 of the Act).
739.Subsection (7) sets out what constitutes a journey by ferry for the purposes of the first objective, and makes it clear that the ferry does not have to be operating at all times of the day or year.
Section 297: General provision about the coastal access duty
740.This section sets out the requirements imposed on Natural England and the Secretary of State as regards considerations that they have to take into account in discharging the coastal access duty. Subsections (2) and (3) set out these considerations.
741.Subsection (2) provides that they must have regard to:
the safety and convenience of those using the English coastal route;
the desirability of that route adhering to the periphery of the coast and providing views of the sea; and
the desirability of ensuring that so far as reasonably practicable interruptions to that route are kept to a minimum.
742.Subsection (3) provides that they must aim to strike a fair balance between the interests of the public in having rights of access over land and the interests of any person with a relevant interest in the land.
743.Subsection (4) sets out which people are treated as having a “relevant interest in land” for the purposes of subsection (3) (with the intention of striking a fair balance between the interests of the public and those with a relevant interest in land). It says that a person has a relevant interest in land if the person-
holds an holds an estate in fee simple absolute;
holds a term of years absolute in the land; or
is in lawful occupation of the land.
Section 298: The coastal access scheme
744.This section requires Natural England to draw up a scheme setting out the approach it will take when discharging its coastal access duty, and makes provision regarding this scheme, including provision for its approval by the Secretary of State. Subsection (5) requires Natural England to set out in the scheme (and any revised scheme) the approach it will take when deciding whether it would be appropriate for an access authority to carry out any preliminary activity, which is defined in section 302. Subsection (6) requires the Secretary of State to lay before Parliament a copy of the scheme or a revised scheme. The section also makes provision for Natural England to revise the scheme, with the approval of the Secretary of State, and to publish the scheme or a revised scheme as soon as is reasonably practicable and in such manner as it considers appropriate. Subsection (9) provides that Natural England must act in accordance with an approved scheme in discharging its coastal access duty. Subsection (10) provides that Natural England cannot prepare or submit proposals for a long-distance route pursuant to the coastal access duty until there is an approved scheme. Subsection (11) enables Natural England to survey land in preparation for preparing or submitting a report before there is an approved scheme, which means that Natural England may do some preparatory work in advance of the scheme being finalised and approved.
Section 299: Review of the coastal access scheme
745.This section provides for Natural England to review the coastal access scheme (which has been approved by the Secretary of State under section 298) from time to time. Subsection (2) requires Natural England to complete the first review of the scheme within three years of the date of approval of the scheme by the Secretary of State. Subsection (3) requires Natural England to publish a report of each review as soon as reasonably practical after it has completed the review.
Section 300: The English coast
746.The coastal access duty (section 296) relates to the English coast. This section defines the English coast, for the purposes of this Part of the Act, by reference to its adjacency to the sea. It provides that the coast includes the coast of islands unless they are excluded.
747.Subsection (2) explains what an excluded island is. It says that islands are excluded unless they are “accessible islands” or they are specified by the Secretary of State by order. Subsection (3) sets out what constitutes an “accessible island”. This is an island to which it is possible to walk from the mainland of England or from another island (other than an excluded island) across the foreshore or by means of a bridge, tunnel or causeway. Subsection (4) provides that, for this purpose, it is possible to walk to an island even if it is possible at certain times, or during certain periods, only. Subsection (5) puts a condition on the Secretary of State’s power to specify an island by order. This is that the coast of the island must be sufficiently long to enable the public to make an extensive journey on foot (the language used in relation to long-distance routes by section 51 of the National Parks and Access to the Countryside Act 1949).
748.Subsection (6) provides that the means of access to an accessible island (for example a bridge, tunnel or a causeway or the foreshore) is to be considered to be part of the English coast for the purposes of the first objective (the duty to secure the English coastal route). This is so that the English coastal route includes the means of access.
749.Subsection (7) provides that this section is subject to section 307 which makes provision about the application of this Part to the Isles of Scilly.
Section 301: River estuaries
750.Subsection (1) provides that this section applies where the coast is interrupted by a river.
751.Subsection (2) provides that Natural England may treat the relevant upstream waters of any river as if they were the sea. Section 309 says that “the sea”, in this Part of the Act, does not include any part of a river which is upstream of the seaward limit of the river’s estuarial waters; however this section allows Natural England to treat relevant upstream waters as if they were the sea. This is necessary because section 300 defines the English coast as being the coast of England adjacent to the sea and section 296 relates the coastal access duty to the English coast.
752.Subsection (3) defines the relevant upstream waters (which Natural England may treat as if they were the sea) as estuarial waters of the river upstream of the seaward limit of estuarial waters either (subsection (3)(a)) to the first bridge or tunnel by means of which the public may cross the river on foot (“the first public foot crossing” which is defined in subsection (8)), or (subsection (3)(b)) to some point it specifies before (downstream of) the first public foot crossing. Any decision to treat estuarial waters as if they were the sea under either subsection (3)(a) or subsection (3)(b) is subject to the general provisions about the coastal access duty set out in section 297. This is clarified in subsection (5).
753.Subsection (4) sets out certain matters to which Natural England must have regard, in addition to the matters to which it must have regard in applying subsections (2) or (3) of section 297 (general provisions about the coastal access duty). These are (a) the nature of the land, for instance whether it bears a greater resemblance to either typical coastal land or typical riverine land; (b) the topography of the shoreline for instance how indented it is and hence how awkward a journey might result from including it in the route; (c) the width of the river, which again would contribute to whether it is closer to typically coastal or to typically riverine land; (d) the recreational benefit to the public of including land; (e) the extent of potential excepted land (the presence of a large expanse of excepted land could influence the decision as to whether to include that part of the estuary in the coastal margin or not); (f) the desirability of continuing the route to a particular feature (for instance to an intersection with a footpath or road, or car park) or viewpoint, and (g) the existence of a ferry by which the public may cross the river. This list is not exhaustive. As well as having regard to the matters in section 297(2), Natural England must also comply with section 297(3).
754.Subsection (6) gives the Secretary of State powers corresponding to those given to Natural England as set out in subsections (1) to (5).
755.Subsection (7) makes it clear that the Secretary of State’s decisions under subsection (2), and compliance with the requirements set out in section 297 are independent of any decision taken by Natural England. This means that the Secretary of State may make a different decision about whether waters of a river are to be treated as part of the sea.
[1998] 2 All ER 587.
