Summary and Background 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.