Natural England: Diversions for Sites of Special Scientific Interest and Coastal Access
| Author | Angela Sydenham |
| Pages | 145-167 |
Diversions for Sites of Special Scientific Interest and Coastal Access
10.1 Sites of special scientific interest diversion orders
Natural England or Natural Resources Wales may apply to the local highway authority for a diversion order for the protection of an SSSI.
The highway must be in, or form part of, or be adjacent to, or be contiguous with an SSSI. The test for making the order is that the public use of the highway is causing or is likely to cause significant damage to the flora, fauna or geological or physiographical features which caused the area to be designated an SSSI and it is expedient in order to prevent such damage that the whole or part of the path should be diverted.
An SSSI diversion order must not divert the cul-de-sac end of a highway, nor where the termination is on a highway, otherwise than to another point on the same highway or a highway connected with it.
Before deciding to make the order, the council may require Natural England or Natural Resources Wales to pay or make a contribution to any compensation payable to a third party, or costs which may be
146 Public Rights of Way: The Essential Law
incurred in bringing the new route into a condition fit for public use, or any costs due to another highway authority for work carried out.
An application must be made on a prescribed form and be accompanied by a map on a prescribed scale.
At least 14 days before an application is made, notice in the prescribed form must be given by Natural England or Natural Resources Wales to any owner, lessee or occupier of land over which the old or new route would run, and to such other persons as may be prescribed. Schedule 6 to the HA 1980 will govern the making, confirmation, validity and date of operation of the orders. The council, in deciding whether it is expedient to make, and the council or Secretary of State, in deciding whether it is expedient to confirm, an order, must consider whether the damage could be prevented by the council making a road traffic regulation order and whether such an order would cause less inconvenience to the public than a diversion order. Where an SSSI diversion order is made by the Secretary of State, on the failure of the council to do so, he must have regard to the same considerations.
An order will not be confirmed unless the Secretary of State, or the council for an unopposed order, is satisfied that the tests for making the order have been fulfilled and that it is expedient to confirm the order having regard to the effect the diversion will have on the enjoyment of the public right of way as a whole, and the effect that the diversion will have on any other land served by the existing right of way and the land over which the new route will run, taking into account provisions for compensation.
The new route may be unconditional or subject to limitations and conditions, even if the old route was not.
The new route will come into existence, and the old route will be extinguished, on the date specified in the order. However, where work is necessary on the new route, the old route will not be extinguished until the council certifies that the work has been carried out. There is
no obligation imposed on a highway authority to provide, on any highway created by an SSSI diversion order, a metalled carriageway.
The Secretary of State may make a diversion order, even though the conservation authority (Natural England or Natural Resources Wales) has not made an application for an order to the highway authority.
Where it does make an application but the council has neither confirmed the order nor submitted it to the Secretary of State for confirmation within 6 months of receiving the application, the Secretary of State may make the diversion order without consulting the council.
10.2 Coastal access
10.2.1 Introduction
The MCAA 2009 introduces a new right of access to the coast for the public to enjoy open-air recreation on foot. The Act imposes a coastal access duty on the Secretary of State and Natural England. The legislation is being implemented by Natural England proposing a series of long-distance paths around the coast
This is complex legislation, as, in order to achieve its aim, the MCAA 2009 incorporates sections 50 to 55 of the NPACA 1949 and inserts new sections (namely, sections 50A to 50G) into that Act, and modifies and inserts a new section 3A into the CROWA 2000. The definition of
6 For the definition of ‘coast’, see MCAA 2009, s 300. Coast includes non-excluded islands. For treatment of estuaries, see MCAA 2009, s 301.
7 See ‘Coastal Access – Natural England’s Approved Scheme 2013 (NE446)’, http://publications.naturalengland.org.uk/publication/5327964912746496.
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‘coastal land’ is contained in a statutory instrument,
10.2.2 The English coastal route
The MCAA 2009 imposes a duty on Natural England and the Secretary of State to secure one or more long-distance routes for the whole of the English coast (the English coastal route) along which the public may make recreational journeys on foot or by ferry and which passes over land that is accessible to the public (except to the extent that it is completed by ferry).
Land accessible to the public by virtue of section 2(1) of the CROWA 2000 fulfils the coastal access duty if it is coastal margin, even if it is subject to exclusions or restrictions,
Land which is accessible to the public under section 193 of the Law of Property Act 1925, the Commons Act 1899, Part V of the NPACA 1949 or the Ancient Monuments and Archaeological Areas Act 1979 does not count as access land under the CROWA 2000. Although it counts as accessible to the public for purposes of the coastal access duty
The third category of land which is treated as accessible to the public for this purpose is land which is excepted land under Schedule 1 to the CROWA 2000, but which is accessible to the public by virtue of any enactment or rule of law.
8 Access to the Countryside (Coastal Margin) (England) Order 2010 (SI 2010/558).
not two different sets of rules applicable to highways. However, military land where access might be permitted by a bylaw
10.2.3 Coastal margin
The English coastal route comes within the definition of coastal margin. But in addition, Natural England and the Secretary of State are under a duty to secure in association with the English coastal route a margin of land along the length of the English coast accessible to the public for enjoyment by them in conjunction with the route or otherwise, unless the land is excepted land. Coastal margin will include areas such as beaches, cliffs, rocks and...
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