England Coast Path: Out of Order

Coastal Margin, One of the worst features of the Coast Path framework was not consulted on publicly.  It’s not even defined in the Act itself.

As though some inherent, received wisdom, Natural England continually refers to “Coastal Margin” as automatically including the entire seaward side of the route of the England Coast Path.  But on what basis?  Questioning this led me a merry chase through legislation, documentation, obscure reaches of Google queries, and a high tolerance for repetition of the term “Coastal Margin” (which you may require to read further).

The first problem was trying to find a definition of the term “Coastal Margin” in the Marine and Coastal Access Act 2009.  The first time it is mentioned, it is not referred to with that distinct term, the first section of Part 9 Coastal Access

Here it only refers to the context of it as an objective of “Coastal Access Duty” and states the purpose of “a margin” for public enjoyment in conjunction with the route.  The act then bandies the term “Coastal Margin” about quite a bit (55 times), but mostly the references are about how to treat and what you can do with Coastal Margin.   You can as a landowner dedicate land as Coastal Margin, if it already adjoins a Coastal Margin.   When Coastal Margin access rights come into effect (only once the route stretch is fully implemented).  That Natural England may align a landward portion of Coastal Margin with a physical feature. You’ll be hard pressed to find a definition, but from context in section 296 you may glean that Coastal Margin is related to the route, and elsewhere that it may have landward and seaward sides.

Finally the search brings you to what looks like Section “55D Coastal margin” but this in turn is a shell game, 1) the section goes on to describe how Coastal Margin may be treated within the report prepared under Section 51, 2) the intrepid reader may already be wondering ‘weren’t we just in Section 296?  have we gone back in time?‘ in a way, we have, we’re actually in Section 302 Long Distance Routes which does two things, both insertions into the 1949 Act which means the National Parks and Access to the Countryside Act 1949, into which Sections 55A-J are dropped betwixt that Act’s Sections 55 and 56, and then Schedule 19 of 2009 is transported to Schedule 1 of 1949 (all without recourse to TARDIS).

Then, the to be inserted, 55J comes along, “Interpretation“, all you legislation junkies know this is where the terms get defined.  So here we finally have:

Of course, all you Hansard habitués know that this refers to the Countryside and Rights of Way Act 2000 (c. 37) (aka CRoW 2000), and like me, you’ve a rolled up copy of the original either under your pillow, or propping up that short table leg.  If you look there, you won’t even find the word “margin”.

Maybe we’re going about this from the wrong direction, we’re trying to find the source of a definition that tells us that the coastal margin is the entire seaward side of the path.  CRoW doesn’t have the word seaward in it either.  The 2009 act  mentions “seaward” 31 times, it’s used throughout relating to various definitions of limits of territorial waters.  In Part 9 Coastal Access the term in used for stipulations within Section 301 River Estuaries such as “relevant upstream waters” is partially defined as “the waters from the seaward limit of the estuarial waters of the river upstream to the first public foot crossing”.  “Seaward” is only used in conjunction with “Coastal Margin” when discussing the notion that an alternative route may have the default spread of 2 metres both landward and seaward, with discretionary additions of physical features on the landward side.  Aren’t you glad you asked?

So how is it possible for “Coastal Margin” to have meaning in the CROW Act in which it seemingly doesn’t appear?  Well you may as well shred that copy under your pillow or table leg, resign yourself to sleepless nights or a shaky table.  Even if you’ve downloaded the latest .pdf of the 2000 Act, all you’ll find is only this in Part I – Access to the countryside / Chapter I – Right of access:

So this still doesn’t answer the question, although we will return to this “coastal land” concept almost immediately.  After The Marine and Coastal Access Act 2009, finishes tinkering with the 1949 Act it also amends the CRoW Act 2000, inserting this next section which finally defines Coastal Margin:

Oh, it didn’t, but it finally mentions “coastal margin” in a prescriptive manner and tells you that the Secretary of State may specify the description by order.  It’s really the legislation’s way of saying “put a pin in it.”  This means the definition of coastal margin in use was never consulted upon publicly leading to the legislation.

The amendment made by the 2009 Act only appears in the “live” version of the Act on the legislation website, but not in any printed or downloaded versions (https://www.legislation.gov.uk/ukpga/2000/37/part/I/chapter/I).  So the definition isn’t in any of these Acts, the “pin” saying they’ll get back to us on that one is.  It is then created by a subsequent statutory instrument, the “order”.

That order “The Access to the Countryside (Coastal Margin) (England) Order 2010 No. 558” was discussed by the Delegated Legislation Committee by 17 MPs on 23 February 2010 for twenty minutes, and was discussed at unspecified length by the Lords Grand Committee on 9 February 2010 during a 3 hour meeting which included five other items of legislation. Here, at long last is the definition from the Order:

In suggesting that Coastal Margin automatically includes everything on the seaward side, unless it is in the excepted category or directed by Natural England exclusions, Natural England have been overly inclusive in their interpretation,

• the Order has no explicit scenario to reflect what to do with the coastal margin should the “coastal land” the foreshore etc., be excluded for habitat or safety reasons, it should not follow that the margin leading up to excluded areas should be included.
• The definition states that coastal margin exists “if the land in a) the route b) the 2 metre spreading room c) seaward to the seaward extremity of the foreshore (mean low tide), TAKEN AS A WHOLE, is coastal land. (recall CRoW Act definition of “coastal land” is just the foreshore and adjacent features such as cliffs or beaches) This either means:
  • if the margin is not coastal land or coastal in character it isn’t automatically included OR
  • if exclusions are indicated then it can’t be “taken as a whole” and therefore not automatically included
• this becomes even murkier where the path must travel away from the coast up an estuary to the first foot crossing, particularly one so protected as the Beaulieu –
  • Natural England have the option to terminate the path either side of an estuary, but avoid this to keep the route contiguous and not create demands for honey pot infrastructure and the terminal points.
  • If you look at the inland habitats woodland etc that are included in coastal margin, woodland etc, despite the foreshore of the entire estuary being excluded under S25a Salt Marsh and Flats, the absurdity becomes more apparent.

Thank you to all of you who made it this far.  I should probably ask if you know which shell the pea is under, or if you followed the lady.  We are left with two problems, the impenetrability of the act helped hide a vital detail until after it was passed, and the interpretation of this detail is open to question.

At the start of this piece I told you that the precise definition hadn’t been consulted on publicly, but there was private discussion of the more general notion of some sort of Coastal Margin, as an equivalent to spreading room, often referred to as the “Right to Roam”, from the CRoW Act 2000.  We’ll examine some of that discussion, and how the definition of the Coastal Margin in use is undermining the path in our next article:

Margin of Error : When is something inland somehow part of the Coast? (coming soon)

Also coming soon, more on how estuaries fare when Natural England gets to decide that they’re the sea.

Up An Estuary, Without a Paddle : No one really knows what to do about an Estuary. (coming soon)