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Marine and Coastal Access Act 2009

Section 303: Access to the coastal margin

772.This section amends Part 1 of the CROW Act. Subsection (2)(a) includes coastal margin in the definition of access land in section 1(1) of the CROW Act. This will have the effect, subject to an order being made by the Secretary of State under section 3A (inserted by subsection (5)), of extending the right of access under section 2(1) of the CROW Act to the coastal margin, other than in relation to excepted land and land which is treated by section 15 of the CROW Act as accessible apart from that Act. Subsection (2)(b) inserts a definition of coastal margin into section 1(2) of the CROW Act; it provides that coastal margin means land which is of a description specified by an order under section 3A.

773.Subsection (2)(c) amends the definition of open country under the CROW Act. As a result, the definition of open country becomes “land which:

a)

appears to the appropriate countryside body to consist wholly or predominantly of mountain, moor, heath or down; and

b)

is not registered common land or coastal margin.”

774.Open country is one of the categories of access land under section 1(1) of the CROW Act. So the effect of subsection (2)(c) is that where land appears to the appropriate countryside body to be mountain, moor, heath or down but has become coastal margin, the right of access under section 2(1) applies to it only by virtue of its being coastal margin. Subsection (2)(d) has a similar effect for land which is registered common land but has become coastal margin; for the purposes of Part 1 of the CROW Act it is not considered to be registered common land and the right of access under 2(1) applies to it by virtue of its being coastal margin. These provisions ensure that only one regime of access and access management under the CROW Act applies to land which is coastal margin.

775.Subsection (3) deals with how the right of access under the CROW Act relates to other enactments as regards prohibitions. The position for coastal land is different from the position for other land to which the right applies. As regards coastal land, prohibitions under any other enactments will apply, whether the enactment is local or general, public or private. So, for instance, rules prohibiting certain types of activities on beaches under a local byelaw will continue to apply. For other land to which the right of access under the CROW Act applies, prohibitions under other enactments only apply if that other enactment is not a local or private Act.

776.Subsection (4) makes section 3 of the CROW Act apply in relation to Wales only, rather than in relation to England and Wales as at present.

777.Subsection (5) inserts a new section into the CROW Act, section 3A (Power to extend to coastal land etc: England). Section 3A(1) allows the Secretary of State to make an order defining coastal margin in England. Subsection (7) requires orders under section 3A(1) to be approved by resolution of each House of Parliament. This is the same procedure as was previously in place for orders under section 3 of the CROW Act in relation to England and the same as for orders under section 3 to modify provisions which apply to coastal land in Wales.

778.Section 3A(2) sets out ways in which the order may describe land, but is not an exhaustive list. It sets out a number of ways in which land may be described by reference to the English coastal route. Section 3A(2)(a) provides that such an order may describe land by reference to its being land over which the line of the English coastal route passes, land adjacent to and within a specific distance of that line and land adjacent to such land. This is subject to the proviso that the land, taken as a whole, must be coastal land, as defined in section 3 of the CROW Act, in other words foreshore or land adjacent to the foreshore. Section 3A(2)(b) refers to cases where the route is subject to erosion etc and allows coastal margin to be described in relation to such a route as it has effect from time to time. Section 3A(2)(c) refers to alternative routes and allows land to be described by reference to its being land over which the line of the English coastal route passes or land adjacent to and within a specified distance of this line. This does not have the effect of making land to the seaward of such land coastal margin. Section 3A(2)(e) makes similar provision for temporary diversions. Section 3A(2)(d) provides that land may be included as a result of the boundary of the coastal margin being drawn to coincide with a physical feature and this is the case whether the result is that land is included which is not itself coastal land, or whether land is excluded which is coastal land.

779.Under section 3A(3) an order under section 3A(1) may be made describing land by reference to the English coastal route before any such route is in existence. This will allow the order to be made before any English coastal route is proposed, so that Natural England in proposing a route, and the Secretary of State when approving the proposals, may take account of the implications of that route for the coastal margin.

780.Section 3A(4) provides that an order under subsection (1) may modify the provisions of Part 1 of the CROW Act insofar as they apply to coastal margin. This is similar to the existing power in section 3 (which will now apply to coastal land in Wales only) and would, for instance, allow the Secretary of State to modify the categories of excepted land which apply to the coastal margin.

781.Section 3A(5) specifies particular things that provision made under section 3A(4) may do. It may for example confer functions on the Secretary of State or Natural England (see section 3A(5)(a)). Examples of this might be, in relation to the Secretary of State, a function of considering representations, and, in relation to Natural England, a function of making directions regarding exclusions or restrictions, if new grounds for exclusions or restrictions are introduced. Section 3A(5)(b) makes provision in relation to any description of land which is excluded from any category of excepted land. It enables an order to make similar provision in relation to land of that description as in relation to other access land. For example, where the route runs along a strip of land along the seaward edge of arable land (and if such a strip were excluded from the arable land category of excepted land under the CROW Act), the area of coastal margin along that route could be enlarged or narrowed to allow it to coincide with a physical feature.

782.Section 3A(6)(a) provides for a period of time, referred to as the access preparation period, between the approval of a coastal route and the right of access coming into force. This is to allow time for Natural England to make preparations such as doing work to sign the route and establishment works to make it suitable for public access (for example installing gates or steps) and to make directions with regard to restrictions and exclusions. Subsection (6)(b) allows Natural England to make directions for the exclusion or restriction of access which will come into force after the end of the preparation period. Subsection (6)(c) provides that land in the coastal margin that was already open country or registered common land will continue to be treated as open country or registered common land until the end of the preparation period. This ensures that any existing rights of access or restrictions and exclusions over such land under the CROW Act continue until the end of that period. Subsection (6)(c)(ii) further makes clear that the position as regards occupier’s liability will remain unchanged until the right of access to the land as coastal margin comes into force: once it does come into force the position as regards occupier’s liability will be as set out in section 1(6AA) of the Occupiers’ Liability Act 1984 (see section 306).

783.Section 3A(7) provides that any exclusions or restrictions of the right of access relating to such land will cease to have effect at the end of the access preparation period. This ensures that any existing exclusions or restrictions on the rights of access over such land under the CROW Act continue until the end of that period. Where appropriate, Natural England should have replaced any such exclusions or restrictions with directions forming part of the proposals for an English coastal route, and these replacement restrictions or exclusions may be made to come into effect immediately after the end of the access preparation period (subsection (6)(b)).

784.Section 3A(8) ensures that any direction made under subsection (6)(b) to take effect after the end of the access preparation period will not be negated by subsection (7).

785.Subsection 3A(9) provides that subsections (6) and (7) do not apply where land is already dedicated as coastal margin. This is because, at the time that an order under section 3A(1) comes into force, the land is already treated as coastal margin by virtue of the dedication.

786.Subsection (6) of section 303 amends section 16 of the CROW Act relating to dedication of land. It allows land in England which is coastal margin or is adjacent to coastal margin to be dedicated as coastal margin. If the land is already coastal margin, the effect of dedicating it is that the restrictions in Schedule 2 to the CROW Act may be relaxed by the dedication if the dedicator so wishes. This subsection also provides that where land is dedicated as coastal margin, then if the land would otherwise be excepted land (within the meaning of Part 1 of the CROW Act) it is treated as if it were not excepted land, unless it is land which is accessible to the public under another enactment or rule of law (for instance, a public right of way). The subsection enables land adjacent to coastal margin to be dedicated as coastal margin, and in this case, in addition to the effects already described, the dedication ensures that the land is treated for the purposes of Part 1 of CROW as if it were coastal margin. Existing dedications may be amended so that land which is already dedicated as access land may also be dedicated as coastal margin.

787.Subsection (7) amends section 20 of the CROW Act to require Natural England to ensure that in relation to land which is coastal margin the public are informed that the right of access conferred by the Act does not affect any other rights of access that may exist in relation to that land. The amendment made by subsection (7)(b) provides that a separate code of conduct may be drawn up for coastal land.

788.Subsection (8) amends section 44 of the CROW Act to ensure that orders under section 3A(1) of that Act are subject to affirmative resolution procedure (like the existing orders under section 3 of that Act).

789.Subsection (9) amends section 45 of the CROW Act to include a definition of coastal margin. The definition is the one set out in section 1(2) of that Act (as amended by this section): “land which is of a description specified by an order under section 3A”.

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