Acle B.N.P.

[marshman]

No doubt someone will check it out, but I thought only the Scottish NP's had direct elections -  well I think so!!!

You should probably also be aware that to vote, you have to live in them, or so I believe - now that would put the cat amongst the pigeons and disqualify quite a few here!!!!!

But no doubt I have probably got even that wrong, and someone will point out the error of my ways!!

Incidentally go back a few years, and I think this very topic and argument about Sandford, was discussed here and very little proof was ever produced that it would result in closing navigation but thats what the opponents of the whole NP argument believe - personally I doubt it.

I suspect too, that the Glover report will be largely ignored as they are too busy with other things, but if it were to be adopted, you can almost guarantee it would give the same protections to AONB's as well.

P.S. Probably got the apostrophes wrong and a few split infinitives included as well!!!!

[rightsaidfred]

43 minutes ago, batrabill said:

I have never said that Sandford applies here!

I am making 2 points

1. It is almost never invoked in the other 14 National Parks. 

2. All the 15 National Parks have to take conservation issues into account on every planning application, and have all sorts of powers to rule against things they don’t think are right for the area - exactly as the BA do now. 

Sandford is a mythical boogie man that has been used by activists here in the Broads to create a myth.  

Slight misconception with that 

Point 1 the 14 NPs are not navigation authorities or tidal waterways so don't have the same legal obligation to maintain them as such so Sandford would only be needed as a last resort.

Point 2 there are not 15 NPs but 14 NPs plus the Broads Authority which has additional responsibilities as laid down in an act of parliament which Sandford would be in direct conflict with.

Fred

[Paladin]

I don't understand the head-long pursuit of national park status. The Broads has been held up as an example of how things should be done.

In 2005, when enforcement of the Windermere speed limit began, a spokesperson for LDNP said "

"There was a problem in the 1980s on the lake between people who were sailing and rowing and people who were fast powerboating. A managed approach had failed; we had talked to the speed lobbyists and those discussions had broken down.”

So the heavy hand was applied because of a breakdown in discussions. Not Sandford, incidentally, but a conflict between two sides of the leisure users, although the sailors did try to play the Sandford card.

But an amendment to an Early Day Motion in the House of Commons the same year read: “That this House notes that the bylaw to introduce a 10 miles per hour speed limit on Lake Windermere comes into force on 29th March 2005; recognises the detrimental effects this will have on tourism, sporting associations and the local economy; and calls on the Government to work with all interested parties to strive to find a managed solution as has proved to be possible on the Norfolk Broads.”

Why on earth should we want to lower our standards of conflict management to that of mere national parks?

[rightsaidfred]

14 minutes ago, MauriceMynah said:

One of the things often asked for is evidence of "Sandford" having been invoked.

Would it be totally unreasonable of me to suggest that "Sandford" is shorthand for "The Sandford Principle". One does not have to "invoke" it, just apply it. It follows therefor that any instance where something has happened where greater weight has been given to conservation over another consideration, the Sandford Principle has been applied very probably without Sandford's name being mentioned.

And that I think is probably spot on.

Fred

[BigCheese]

1 hour ago, Woodie said:

Different tangent, the Lake District National Park Authority are facing a legal challenge from a pressure group because they didn’t apply Sandford in reaching a decision. 
 

Really  didn’t want to stop you boating on HIckling, but we were forced  to apply Sandford, even though we had no intention.

Sorry

Honest.......

Spot on Woodie. I believe that is a real risk.

[JennyMorgan]

10 hours ago, batrabill said:

What is it about being a full NP that is an actual threat to the Broads since Sandford is obviously not?

Would you please explain why Sandford is obviously not a threat. 

As one who attended Parliament to petition against the Broads Bill I can tell you that the wise folk in both Houses declared that as Sandford was integral to the National Parks and Access to the Countryside Act 1949 then if the Broads was to be a national park then it would have to be with the same conditions and terms as the existing NPs. With its duties regarding navigation it was made absolutely clear that the Broads could not and can not be a national park as the Broads Act is unique to the Broads, no Sandford. Argue with me if you want, you might win, but argue with recorded history (Hansard) then you won't. 

[batrabill]

54 minutes ago, MauriceMynah said:

One of the things often asked for is evidence of "Sandford" having been invoked.

Would it be totally unreasonable of me to suggest that "Sandford" is shorthand for "The Sandford Principle". One does not have to "invoke" it, just apply it. It follows therefor that any instance where something has happened where greater weight has been given to conservation over another consideration, the Sandford Principle has been applied very probably without Sandford's name being mentioned.

MM I agree this is possible, but it does ignore the fact that Sandford only kicks in when the needs of development and conservation cannot be resolved. It is to break deadlock. Ergo it is very likely to be invoked publicly. 

 

Also, you’re clutching at straws here a bit aren’t you?

Now it’s “secret Sandford” we have to worry about???

[JennyMorgan]

1 minute ago, batrabill said:

Also, you’re clutching at straws here a bit aren’t you?

That is something that very clearly you too can be accused of!

[Paladin]

25 minutes ago, batrabill said:

MM I agree this is possible, but it does ignore the fact that Sandford only kicks in when the needs of development and conservation cannot be resolved. It is to break deadlock. Ergo it is very likely to be invoked publicly. 

 

Also, you’re clutching at straws here a bit aren’t you?

Now it’s “secret Sandford” we have to worry about???

Now you've really lost me. Where does Sandford mention 'development'?

[JennyMorgan]

1 hour ago, marshman said:

No doubt someone will check it out, but I thought only the Scottish NP's had direct elections -  well I think so!!!

I won't bother to check but you could well be right, does it matter though?

The call for elections on the Broads is clear and arguably necessary, if only to break up the unacceptable level of  control exercised by the Doctor.  Let's be clear, we are discussing The Broads, not NPs in general.

We have a number of clearly identifiable user groups, each of which could have a representative body to which interested people could subscribe. Sub groups are inevitable but as such would have to accept an umbrella group to represent their interests, just as boating as a whole has the NSBA. It could be achieved, if there is a will. 

[Paladin]

It might be a good time to remind people that the Sandford Principle was kicked into touch 25 years ago. The expression is used, often misunderstood and inaccurately, as shorthand for something that doesn’t exist (a bit like BNP).

The original principle, which wasn’t law, but a management tool, said: "Where irreconcilable conflicts exist between conservation and public enjoyment, then conservation interest should take priority.”

This was watered down slightly, when the Principle was enshrined in law, by section 62(1)(2) of the Environment Act 1995, which amended section 11 of the 1949 Act as follows: "In exercising or performing any functions in relation to, or so as to affect, land in a National Park, any relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and, if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park.”

The original principle gave conservation interest automatic priority – no explanations were necessary. Since 1995, when the purpose of conservation must only be given greater weight, an obligation has been placed on the relevant authority to obtain and weigh up evidence and come to a decision that must be explained, within the context of the Act. This also makes any decision open to challenge.

[Paladin]

2 hours ago, Woodie said:

Different tangent, the Lake District National Park Authority are facing a legal challenge from a pressure group because they didn’t apply Sandford in reaching a decision.

 

Is that a current legal challenge? I would be interested in following its progress.

Although the 1995 Act says "shall attach greater weight", the word 'shall' was historically taken to mean 'must'. That situation has changed and the only word now recognised as imposing a legal obligation is 'must'.

'Shall' is one of the most challenged words in litigation (apparently). Several years ago, the US Supreme Court ruled that 'shall' in a statute means 'may'. UK courts are entitled to (and do) take note of judicial decisions from all around the World.

[NorfolkNog]

Well they are quite happy to waste money on silly signs while the water hose at Ranworth has more leaks than Watergate 

[batrabill]

42 minutes ago, JennyMorgan said:

Let's be clear, we are discussing The Broads, not NPs in general.

 

But we're NOT just discussing the Broads, we are discussing if calling the Broads a National Park matters.

It can only matter, if it means that it may become a full NP (although my view is that is completely impossible because it would have to be a full NP PLUS navigation, so little would change) and that would have a negative impact.

That means there has to be a reason that being a full NP is BAD! Hence you can't discuss it in isolation.

[Paladin]

8 minutes ago, batrabill said:

That means there has to be a reason that being a full NP is BAD!

That is very subjective, but from a boater's point of view, perhaps the prospect of navigation rights being put at risk is not an attractive option.

[scaniaman]

27 minutes ago, Paladin said:

Is that a current legal challenge? I would be interested in following its progress.

Although the 1995 Act says "shall attach greater weight", the word 'shall' was historically taken to mean 'must'. That situation has changed and the only word now recognised as imposing a legal obligation is 'must'.

'Shall' is one of the most challenged words in litigation (apparently). Several years ago, the US Supreme Court ruled that 'shall' in a statute means 'may'. UK courts are entitled to (and do) take note of judicial decisions from all around the World.

There is an organisation called Save Our Lake District (SOLD) which may be of interest. It was on the local northwest BBC news yesterday.

Paul

[Paladin]

23 minutes ago, scaniaman said:

There is an organisation called Save Our Lake District (SOLD) which may be of interest. It was on the local northwest BBC news yesterday.

Paul

Thank you. The Save the Lake District (different group) website includes this:

The Sandford Principle
We presented our case again at the last full LDNPA meeting of 2019  emphasising that the Sandford Principle (codified in the 1995 Environment Act) clearly states that where there is a conflict between conservation and enjoyment, then conservation MUST take precedence.

That statement is wrong in law, for the reasons I gave earlier. If that is the basis of their case, I think they're wasting their time and money.

[JennyMorgan]

53 minutes ago, NorfolkNog said:

Well they are quite happy to waste money on silly signs while the water hose at Ranworth has more leaks than Watergate 

This picture includes a fine example of The Broads Mungle, probably the most used and inappropriate tangle/hitch commonly seen on the Broads. Perhaps notices banning its use on the Broads would be public money better spent than faux BNP road signs.

[BigCheese]

1 hour ago, Paladin said:

It might be a good time to remind people that the Sandford Principle was kicked into touch 25 years ago. The expression is used, often misunderstood and inaccurately, as shorthand for something that doesn’t exist (a bit like BNP).

The original principle, which wasn’t law, but a management tool, said: "Where irreconcilable conflicts exist between conservation and public enjoyment, then conservation interest should take priority.”

This was watered down slightly, when the Principle was enshrined in law, by section 62(1)(2) of the Environment Act 1995, which amended section 11 of the 1949 Act as follows: "In exercising or performing any functions in relation to, or so as to affect, land in a National Park, any relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and, if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park.”

The original principle gave conservation interest automatic priority – no explanations were necessary. Since 1995, when the purpose of conservation must only be given greater weight, an obligation has been placed on the relevant authority to obtain and weigh up evidence and come to a decision that must be explained, within the context of the Act. This also makes any decision open to challenge.

Paladin, you make a very strong point. However, the Doc isn't famous for providing honest explanations and, even if they were, my position remains one of absolute mistrust that such powers would not be abused, with total impunity.

I've not yet been involved with any such challenges, but it appears to me to be a very painful and exhausting process, falling on the shoulders of a handful of concerned people, due to a comprehensive lack of both accountability and established, effective representation. However, I am totally receptive to an alternative view.

It is for these reasons I believe prevention is better than cure and will continue with my project. I have taken on board some very relevant points of view here, and my thinking, has changed as a result. I shall update this group for further comment when the time is right.

[Woodie]

1 hour ago, Paladin said:

Is that a current legal challenge? I would be interested in following its progress.

Although the 1995 Act says "shall attach greater weight", the word 'shall' was historically taken to mean 'must'. That situation has changed and the only word now recognised as imposing a legal obligation is 'must'.

'Shall' is one of the most challenged words in litigation (apparently). Several years ago, the US Supreme Court ruled that 'shall' in a statute means 'may'. UK courts are entitled to (and do) take note of judicial decisions from all around the World.

To be more accurate, a group called GLEAM have filed a claim against theLDNPA for a judicial review.

The authority solicitor states the claim alleges the authority failed to properly advise their Rights of Way Committee of their DUTY (my caps) under the Sandford Principle.

Reported in the Westmorland Gazette 23 01 20

[JennyMorgan]

Have just had a peep at the SOLD website, not convinced that its agenda would be entirely appropriate for the Broads though. Mind you, perhaps we could form a group called SOB, not Spirit of Breydon, but Save our Broads. But thinking about it, perhaps POB would be better, Protect our Broads.

[Paladin]

20 minutes ago, BigCheese said:

 I shall update this group for further comment when the time is right.

I will be interested in your progess, but before you go, I'd like to make a final point.

In your first post, you said: "The statutory right of navigation on all rivers capable of navigation was completely unquestioned for 1800 years. Over the last 200 years a different view has been formed by some lawyers, landowners and other bodies, based on riparian rights (rights associated with property bordering rivers). But it is an accepted principle of English law that such private rights are subservient to public rights."

I think that it is now well-established that there is no blanket statutory right of navigation on non-tidal rivers. But we are more concerned with the right of navigation on the tidal rivers of the Broads. You may be able to enlighten me, but I have found no statute that awards such a right. It appears to stem from the common law.

It is an accepted precept that, when two laws are in conflict, the later law prevails. The Environment Act 1995 does not conflict with any rights of navigation and is, therefore, of little concern to us. However, if new legislation came about along the lines of the proposals in the Glover Review, it is entirely possible that such legislation could over-ride the common law right of navigation that we currently enjoy. I would like to think that, if that was a prospect, the RYA would wake up and smell the coffee (I've given up on the NSBA).

Just a thought.

[BigCheese]

37 minutes ago, Paladin said:

I think that it is now well-established that there is no blanket statutory right of navigation on non-tidal rivers. But we are more concerned with the right of navigation on the tidal rivers of the Broads. You may be able to enlighten me, but I have found no statute that awards such a right. It appears to stem from the common law.

Thank you, Paladin, just goes to show a solo effort is littered with man-traps. However, having very recently tried to form a pressure group and failed miserably (for very good reasons), I've gone for this approach.

I'm no lawyer and have nothing like the understanding you clearly do. I've tried to read this paper: http://andybiddulph.co.uk/ESW/Files/Cureent_Case_law.pdf , but my eyes quickly glaze over I'm afraid. However, I think it confirms your assertion and I will edit the section accordingly. In my defence, it does say "how badly intelligent men may be misled by a quick dip in the textbooks and commentaries". That could be interpreted as an assertion I'm intelligent, which I take heart from!

Thank you for being so vigilant.

[Paladin]

1 hour ago, Woodie said:

To be more accurate, a group called GLEAM have filed a claim against theLDNPA for a judicial review.

The authority solicitor states the claim alleges the authority failed to properly advise their Rights of Way Committee of their DUTY (my caps) under the Sandford Principle.

Reported in the Westmorland Gazette 23 01 20

Thank you. I've read it now and the issue relates to the advice given to the committee, rather than the committee's failure correctly to consider Sandford.

[marshman]

No PW it does not matter that possibly only the Scottish NP's have direct elections, but I was merely pointing out that you had to live in the Park to vote, thereby possibly disqualifying boat owners, should elections ever be called for here if the same rules applied - which they may not!!