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Access To The Countryside

Volume 407: debated on Wednesday 25 June 2003

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11 am

I am grateful for the opportunity to raise the case of my constituents Robin and Jane Loder and the experiences that they have had in relation to the Countryside and Rights of Way Act 2000. I have notified the Minister in advance of the case that I shall raise, so I hope that he is in a position to respond to the detailed issues.

Leonardslee Gardens in Lower Beeding in West Sussex is one of the wonders of England. Situated in the High Weald area of outstanding natural beauty, it has been created over 150 years by four generations of the Loder family and is home to one of the most interesting collections of flora in the world. It is especially famous for its collection of rhododendrons, which, in the month of May, flower so spectacularly that I would not be surprised if Leonardslee were visible from space. Indeed, the species rhododendron loderi was developed by Robin Loder's forebears at Leonardslee. Today, it is owned and managed by Robin and Jane Loder.

Like his forebears, Robin is a fanatical gardener and botanist, who has written extensively about natural flora. However, Leonardslee is no rich man's plaything. Open to the public—as it is for eight months of the year—it is the only source of livelihood for Robin and Jane, and for the eight full-time gardeners who work there. It also provides seasonal employment for a further 50 or so people.

Before 1987, only about half of Leonardslee's 200 acres was open to the public. The rest was very mature woodland, with many trees of such an age that they were a danger to the public. The hurricane of October 1987 changed all that. Standing four-square in the path of the storm, Leonardslee was devastated. In the 60 acre area of Leonardslee with which I am concerned today, 3,000 trees were lost; only 740 were left standing. The entirety of a unique 1902 pinetum was destroyed, and even in the least affected area, 75 per cent. of the trees were destroyed. Overall, Leonardslee lost 10,000 trees.

In the years following, Robin Loder repaired the damage and used the opportunity to revitalise an extraordinary, but completely artificial piece of English landscape to the extent that, in 1993, the 60 acre area joined the rest of Leonardslee in holding a grade 1 classification in English Heritage's register of parks and gardens. That accolade is a fair reflection of what generations of Loders—Robin certainly not the least among them—have accomplished. What has been done there is in every way admirable. Leonardslee is open to the public, it gives employment, it has added to the store of scientific knowledge, and it is organically managed. It is a unique, beautiful and magical place, which has become so, and remains so, through the expenditure of enormous amounts of hard work and considerable sums of money.

In November 2001, the Loders discovered—through the Countryside Agency's website, not through the courtesy of a letter or a telephone call—that two thirds of the area of Leonardslee currently open to the public had been mapped as open country with open access for the public. Open country is defined by the CROW Act as land that
"appears to the Countryside Agency to consist wholly or predominantly of mountain, moor, heath or down."
The 120 acres so mapped are intensively managed ornamental gardens, and parkland grazed by deer and, for more than a century—rather eccentrically—by wallabies. It is an area that was, until the 1987 storm, heavily wooded.

Following an initial response by the Loders, half of that area was removed from the provisional map. Some 60 acres remained in two adjoining parcels, which the Countryside Agency continued to maintain were open country within the meaning of the Act. The area was almost exclusively heavily wooded before 1987. In the past 10 years Mr Loder has allowed part of it to regenerate naturally as woodland in order to create a shelter belt, so that he can replant the 1902 pinetum, which contains a variety of more or less tender trees. That process has now started. That natural regeneration has been heavily managed, as it needs to be, to ensure that the trees that grow—mainly birch—are of good quality and enhance the aesthetic appeal of the place.

Leonardslee is plainly neither mountain, moor nor down. The argument is about whether any of it can sensibly be described as lowland heath. The only definition of heath appears in paragraph 68 of the Countryside Agency's mapping methodology, which says that heath is
"land of a generally open character, usually characterised by natural ericaceous dwarf shrubs."
The definition continues:
"The typical vegetation types are heathers, gorse, bilberry, mires, scrub, unimproved grassland, and bracken."
Area E, the smaller of the two parcels of land, cannot reasonably be said to display those characteristics—it is basically grassland and some regenerating woodland. However, that is the only relevant quality, as the Countryside Agency admits. Had that area been heavily wooded, as it was before the storm, it could not have been classified under the Act. Area F, the larger area, was also heavily wooded, and will be so again as a result of the progressive planting undertaken since. It does, however, contain a small area of some 5 to 7 acres that exhibits some of the characteristics of genuine lowland heath.

Robin Loder rightly appealed against the decision. The appeal was scheduled for August, and now, at the eleventh hour, the Countryside Agency has said that it will not contest the appeal, albeit on limited grounds, to which I shall return. I am especially grateful for the care and courtesy that Sir Ewen Cameron, the chairman of the Countryside Agency, has devoted to the case. It might therefore be thought that there has been a happy outcome to the episode. However, I cannot overstate what a torment the affair has been for Robin and Jane Loder. They have seen an arm of the state take an apparently arbitrary, almost whimsical decision that would, at a stroke, have deprived them not only of their livelihood but of the life's work of Robin Loder and his distinguished forebears. The situation has cost them many tens of thousands of pounds in professional fees even thus far; had the appeal continued to its contested conclusion, that sum would probably have been doubled. The financial cost has been severe enough, but the emotional and mental toll that the episode has taken has been immense. Robin and Jane Loder deserve recompense for what the state has subjected them to, and I intend to see that they get it.

I should like the Minister to respond to my concerns. First, the process has been appalling. There has been no consultation and no discussion. Whenever surveyors have visited, they have refused to enter into any discussion with the custodians of the property, and have therefore denied themselves the opportunity to understand the history and background of that certainly unique piece of land. The surveys have been cursory and poorly documented, and the report from the last survey, in March 2003, has neither been supplied to the appellants nor referred to in the agency's statement of case. I ask the Minister that that report be now provided.

These procedures are inefficient from the agency's point of view, because they inevitably lead to such expensive mistakes. However, it is also contrary to natural justice for the state to be able to intervene regarding private property without the owners' having any opportunity to make their case at an early stage. I ask the Minister to institute an urgent review of the procedures to ensure that the demands of basic natural justice are met.

Secondly, the decision to map the area as heathland is incomprehensible. The Countryside Agency's own survey map tells the whole story: area E is described as half acid grassland and half regenerating woodland. It is accepted that the presence of those two types of cover is compatible with an area's designation as heathland, but only in the sense that their presence does not stop the area being heathland overall. I know of no definition under which the presence of acid grassland and regenerating woodland on their own make an area heathland. According to the agency, area E and area F between them include only one small portion, which is no more than 13 per cent. of area F—the 5 to 7 acres to which I referred—which is described as "heathland/acid grassland mosaic." The term mosaic is important, because it clearly conveys that the land so described is only partially heathland. That clearly means that it is not "pure" heathland, if such a concept exists. In the tick-box survey form that the agency completed in May 2002, the box for heathland in the section on "qualifying land cover" was left unticked. The only type of cover that could definitively make the area heathland was not found. Other cover types that were ticked—acid grassland, bracken, scrub and scattered trees—are all compatible with heathland, but do not make an area heathland.

The agency's statement of case wilfully misstates the position by asserting that
"a mosaic of heathland and acid grassland is the predominant ground cover".
The agency's own plan, which I have to hand, gives the lie to that assertion. It makes it clear that only 13 per cent. of the area is such a mosaic, yet it stubbornly adheres to its original conclusion, even in the face of its own evidence. Even at the point of concession 10 days ago, it continued to maintain that the ground cover was heathland, with that dogged, dogmatic refusal ever to admit error so typical of Government agencies that so enrages law-abiding citizens and makes them utterly determined to pursue their grievances against the state to the last farthing.

The concession letter states:
"We would, however, wish to make it abundantly clear that the Agency does not accept the appellants' assertion that the land is regenerating woodland and, therefore, not heathland. The Agency maintains its view that the land cover is heath. In addition, the criticisms of the mapping methodology advanced on behalf of the appellants are rejected in their entirety."
That is not a way for Government agencies to behave. It is disgraceful. It avoids the issue of the agency's thoroughly dodgy methodology and definitions being ventilated and tested in a tribunal. The only conclusion that I can draw is that the agency plans to subject other landowners to the same appallingly arbitrary treatment. I hope that the Minister will commit to an urgent review of the methodology and definitions that govern the agency's behaviour.

The third issue relates to a deficiency in the 2000 Act. It is clear that Leonardslee is "park and garden". English Heritage's inclusion of it in its register surely puts that beyond dispute, and it would be "excepted land" under part 1, schedule 1 to the Act. There should therefore never have been a problem, except that the agency is entirely unable to make a definitive and binding statement declaring it to be excepted land, and thus to conclude the matter.

For Robin Loder to rely on the provision, the land would have to appear on the map, and it would be entirely on his shoulders to assert and to defend its "excepted" status against all comers—in the courts, if need be. How can that be just or fair? As it happens, the local chapter of the Ramblers Association strongly supports the Loders' case, but that might not have been so, and it cannot be right for matters of such importance to be left to chance in this way.

At the very least, I hope that the Minister will commit to amend the 2000 Act to enable exception to be dealt with at the mapping stage, so that land such as Leonardslee that is so obviously excepted can be taken out of the equation at the start of the process and so that people like Robin and Jane Loder will not be subjected to all these proceedings.

The fourth issue is that it is surely profoundly wrong that land to which the public already have access on payment of an entrance fee should come under the open-access provisions. Leonardslee could not exist without the paying public, and far from wanting to keep the public at bay, Robin Loder absolutely needs to entice them in. However, Leonardslee is an entirely manufactured landscape and can remain of interest to the public only if it is intensively managed, and that is expensive. Without replanting and intensive grazing by deer and wallabies, even the few acres of quasiheathland that the agency is so keen to get its hands on would swiftly revert to scrub. The type of management involved makes things even more expensive. Organically managing Leonardslee involves, for example, pulling ragwort by hand rather than spraying it, and I know from personal experience that that demands high levels of manual labour. Giving the public free access to land to which they previously paid for access would therefore be utterly self-destructive. The very qualities that made the area appealing would evaporate in the absence of the entrance fees that maintained them.

There is, however, a further objection, which, as far as I can discover, was never ventilated when the Countryside and Rights of Way Bill was scrutinised. It is surely objectionable in principle for an economic asset to be expropriated by executive diktat and without compensation. It is arguable that genuine heathland, downland, moorland and mountain, whose economic value lies primarily in grazing, remain economically unimpaired by the advent of open access. However, the entire economic value of such as Leonardslee would be confiscated.

When I raised the issue with the agency's chairman, he responded by saying that the agency would impose restrictions if such properties were mapped and failed to clear the excepted land hurdle. He said that the agency would expect the restriction regime simply to replicate the existing payment regime. There are two problems with that. First, that policy has not yet been finalised and promulgated, so landowners cannot plant on that basis. Secondly, it is a travesty that a landowner should have to go through such a protracted, expensive and emotionally gruelling process to win, at inordinate cost, the right to continue doing what he is already doing. That cannot have been intended in the Countryside and Rights of Way Act 2000. I therefore hope that the Minister will undertake to amend the Act to clarify that it is not intended to apply to land that is already open to the fee-paying public.

This has been a sorry episode, and there will be many others who, like Robin and Jane Loder, have had their lives turned upside down. I hope that the Minister can provide some reassurance that such manifest faults in the system will be put right.

11.17 am

I thank the right hon. Member for Horsham (Mr. Maude) for securing the debate and for giving us an opportunity to discuss the important points that he raises. It was interesting to hear of his experience of manual labour, and I am happy to commend his efforts in pulling up ragwort. As he knows, it is one of the issues that we are working on with the horse industry, because of its pernicious effects. I therefore very much admire the right hon. Gentleman's contribution to tackling the problem.

I shall not reopen issues that were debated when the Countryside and Rights of Way Act 2000 was scrutinised in this House and in another place. I shall, however, update hon. Members on the point that we have reached in implementing the new right of access to open countryside and registered common land. It is worth bearing in mind that some of the processes involved are complex, particularly because we sought fairly to balance people's understandable wish to access and enjoy the countryside against the needs of land managers, including farmers, in managing their land.

The right hon. Gentleman refers specifically to the Leonardslee gardens appeal, but he will be aware that I cannot comment on the merits of the individual appeal. As he said, the Countryside Agency has made it clear that it will concede the appeal. However, he will be aware that an inspector must still formally determine the matter on behalf of the Secretary of State. That is because the process is transparent.

The right hon. Gentleman made several criticisms, particularly of the agency and some of its approaches, and I will ensure that those criticisms are examined. I am keen for the agency not only to act fairly and efficiently but to be seen to act fairly and efficiently. I can reassure him that I meet the chair, the deputy chair and the chief executive regularly to discuss its policies and performance, and the implementation of the 2000 Act and the mapping exercise regularly figure on the agenda.

On the case to which the right hon. Gentleman refers, I can confirm that the Countryside Agency has written to the Planning Inspectorate and to the owner, Mr. Robin Loder, to say that it will not contest Mr. Loder's appeal against the showing of land at Leonardslee gardens on the provisional map. Further, I understand that the chairman of the agency wrote to the right hon. Gentleman earlier this month and in summary said that this had been a difficult case, raising issues that the agency had not encountered previously. For that reason it is not right to make a generalised risk assumption.

The agency remains convinced that the land in question met the vegetation criteria for the heath set out in the mapping methodology. It pointed out that there was a unique situation of land within a formal garden, which meant that the land did not meet the provision in the methodology that land should be of a generally open character, which is why the agency decided not to contest the appeal.

The chairman also said that the agency regrets the anxiety caused to Mr. Loder, but assured the right hon. Gentleman that agency staff had acted properly at each stage of the appeal. As I have said, it would not be appropriate for me to comment further as the planning inspector has yet to determine the appeal. I am happy to say more, once the appeal has been formally determined by the inspector. I am sure that the right hon. Gentleman will accept that these are formal legal processes and that in some ways it might have been helpful if we had had this debate after the formal determination took place.

Given what the Minister helpfully says—that this has been a test case, which has enabled a number of difficult issues to be tested and resolved within the agency—I hope that he will go on to say that it would be appropriate in the circumstances for the Loders' expenses, which are considerable, and have been incurred almost in the role of guinea pig for the agency, to be reimbursed.

I think the right hon. Gentleman knows the answer to his own question, which is that I am not going to say more about this case until the appeal has been finally determined. I hear what he says and I have said that I will look at the case with the agency to see what wider lessons might be learned and what further can be said in response to the criticisms and points that he has made in the debate once the appeal has been determined.

It is worth making the point that the agency must map all land that appears to those undertaking the mapping to consist of open country or registered land. But the right of access will not necessarily apply to all the land that appears on the agency's maps; that is of the essence of the three-stage approach that is set out. The Act recognises that within areas of open country or registered common land there will be land that should not be open for public access. Such land is described as "excepted land": gardens, parks and cultivated land are among 13 categories of land specifically excepted from the right of access, even though they may be shown on the agency's maps.

The purpose of the excepted land provisions is to provide flexibility. The agency's maps will last up to 10 years. Over that period, land currently shown as open country or registered common land may become excepted, and excepted land may change its use so that the right of access applies to it. The agency has no power to remove excepted land from its maps of open country and registered common land. The agency's maps can only show the current extent of excepted land, so people walking in the future may be misled into thinking that land is open for access when it is not and vice versa.

In any case, I am not convinced that walkers will use the agency's statutory maps as their main source of information on land that is open for access. As a walker myself, I go to the source of Ordnance Survey maps, as I am sure most people do. However, I assure the right hon. Gentleman that we recognise the benefits for landowners and walkers alike of giving people as much information as we can to help them understand where they can and cannot walk. It is also fair to say that both the agency and the Department for Environment, Food and Rural Affairs are learning lessons as this unique process is carried through as a result of the CROW Act.

All the bodies involved in the roll-out of the new right of access will undertake extensive publicity to ensure that people understand the right and the accompanying responsibilities. We are working in partnership with our colleagues in Wales, the countryside bodies, the Ministry of Defence and Ordnance Survey to decide how best to identify excepted land in England and Wales. We are also looking to the main stakeholders on this issue, which include the Country Land and Business Association, the National Farmers Union and the Ramblers Association. It is good that those organisations are talking to one another.

That process will be enhanced by the committees at local and county level, which engage people who have traditionally been on different sides of the equation to try to secure a practical outcome for the implementation of the CROW Act and other access issues. We hope that those discussions will lead to a solution that is acceptable to all parties concerned with the implementation of the new right of access.

The right hon. Gentleman referred to landowners wanting to charge for entry to land shown on the agency's maps of open country and registered common land. Again, I stress that I am referring to the issue generally, although he referred to it in specific terms. The agency considers that there are circumstances in which a direction excluding access should be given to allow the owner of access land to charge an entry fee. One principle of the Act is that the right of access should not prevent landowners from managing their land. That said, it is important that restrictions and exclusions of access are not abused.

The agency is preparing guidance for the bodies responsible for granting directions restricting or excluding access. Clearly, that guidance must distinguish between cases in which there is a legitimate need to exclude access and those in which the intention may be simply to make access more difficult for walkers. I am sure that the right hon. Gentleman would accept that distinction.

I can assure the right hon. Gentleman and the House that we are making good progress towards implementing the new right of access by the end of 2005, as has always been the intention. I have announced that I intend to roll out the right on a region-by-region basis, starting in the summer of next year. We are on course to achieve that, but we cannot predict with certainty how long it will take to determine appeals against the showing of land on the maps. Everyone involved in the process is learning as it continues.

Last week, we laid regulations to give the agency powers to correct minor errors on its maps of open country and registered common land. Those powers will assist the agency in its determination to ensure that the maps are as accurate and comprehensive as possible. The powers will also, in a minor way, simplify part of the process. We aim to lay regulations shortly on exclusions and restrictions of access.

At every stage in the process, we have sought to balance the sometimes conflicting demands of land managers and users of any new rights of access. We consult widely on all our proposals and seek to include as many people as possible in our decision making.

We are working closely with the agency to consider how the new right of access should be managed and what funding streams are available to assist. This is not just a matter for central Government. We are encouraging local authorities to think hard about the benefits of the right that will accrue to local communities and about how to make the most of that exciting opportunity. It is significant for the economies of many areas. Access and things such as the national trails have an enormously important impact in drawing people to an area and enabling the local economy to benefit. We expect the new right of access to benefit local communities by bringing more walkers into the countryside and increasing local economic activity. I am convinced that local communities will see benefits as a result. What could be better than a walk in our glorious countryside followed by lunch in a village pub?

As the right hon. Gentleman said, the process is complex and individual cases raise important issues. I have given him an undertaking that I will consider the issues that he raised once the case to which he referred has been determined, and that I will respond to him further then. As I said, it would not be appropriate for me to say more during this debate, although I greatly welcome the debate.

11.29 am

Sitting suspended until Two o'clock.