Growth and Infrastructure Bill
Lord Greaves
Lord Greaves
My Lords, I shall speak also to Amendments 65 to 70, which are grouped; there are some interesting Labour amendments in the same group, which we will discuss with interest. I completely misread the draft groupings when they were issued; I thought that the two stand part debates were part of this group. In practice, I think that it would be sensible if we discuss everything within this group; I will certainly do that and, I hope, we will have nothing else to discuss when we come to the stand part debates, but we will see, because it is impossible to talk about the amendments without talking about the overall principles.
Clause 14 makes provision for the right of people to apply to register land as a town or village green to be stopped by certain trigger mechanisms. In discussion on previous amendments, I referred to the nature of town and village greens, which are based on different law and principles from applications for planning permission, which the clause is really about.
There are two separate systems. There is the procedure for registering greens, which is set out in the commons legislation and which is based on an assessment of the facts on the ground. It either is or is not a green, according to the criteria to which I referred previously, which are that it must have been used by people for informal recreation for 20 years or more without permission, without hindrance, without force and without secrecy. If those conditions apply, a person can apply for it to be made into a green.
Planning permission is completely different; it falls under the Planning Acts. That is a request for permission to use land for a particular purpose, or to build on it, to develop on it, and bears no immediate relationship to the previous or existing use. The problem, and the reason for Clauses 13 and 14, is that it is claimed—with some justification, but less than some people are claiming—that people are making vexatious or frivolous applications to register land as village or town greens, applications that are without foundation, to delay or prevent a particular development. Many of the examples that have been cited concern housing. Little evidence for that has been provided. We have been provided with lists of places where it is alleged that that has taken place, but the evidence is, to put it mildly, a bit thin.
Having said that, I am not challenging the view that it is possible, or the fact that it has happened in some places. I am not challenging the view that it ought not to be possible to make vexatious and unfounded applications for this purpose. The question is how to find an appropriate solution to this problem. Quite a few of the examples that have been provided have been on land owned by the council or by a local authority. The fact that the situation has got to the stage where a green application has been made is essentially down to incompetence by that local authority. However, that is not necessarily a reason why it should succeed.
If we accept the principle that vexatious applications should not be allowed to get in the way of development, how can the Bill tackle it? The Penfold review of non-planning consents looked at this issue as one which was perhaps outside the planning system but which was delaying and possibly stopping development. The Penfold review suggested aligning—an important word—the green registration process, which is a non-planning process, with the planning system where active planning proposals on land existed and where people were making greens applications. It should be said that some of those green applications may have been triggered or stimulated by the planning application but were not necessarily wrong—but let us assume that we are dealing with vexatious applications.
At the beginning of consideration of this Bill Ministers stated quite clearly in briefings that it was their wish to align the planning system and the greens system. Unfortunately, this is not what the Bill does. It defines “trigger events” which are related to planning and the planning process, and which then immediately remove—that is to say, abolish—the rights of people under the green registration process. Instead of aligning the two processes and systems, the Bill is solving the problem simply by abolishing the system that is thought to be getting in the way.
Schedule 4 sets out the trigger events that will be involved. They are to do with either applications for planning permission or the publication of documents under the plan-making system. As far as planning permission is concerned, the trigger event is the moment at which the application is first publicised. A second trigger event is the moment that consent is given. This applies to either planning permission in the normal way or applications for development consent under the infrastructure planning system. There is a lack of logic here. If an event has been triggered by the application first being publicised, one wonders why a further triggering is required when planning permission is granted—but never mind. Those are the two stages at which the process is triggered. Under the plan-making system, the event is the publication of a development plan document or a neighbourhood plan; it is either the publication of a draft of those documents or the adoption of the plan.
My amendments to Schedule 4 look fairly complicated, but all they actually do is to put the trigger events on the adoption of a plan or the granting of planning permission or development consent. In other words, it is the final event in that process in which the land is then allocated for that purpose. I am not arguing that the green application process should not stop if land has active planning permission. As far as plans are concerned, I am not arguing that the green application process should stop if there is an adopted plan. It seems absolutely clear that under those circumstances that is reasonable. Where it seems unreasonable is where it is an initial stage in the process, where no notice is given of it and where people have no reasonable opportunity to know that it is going to happen—and it immediately stops. That does not align the greens process with the planning process; it simply stops the greens process in its track.
There are various ways, which I have not set out in detail in the amendments, in which the alignment of the process can take place: I think the amendments tabled by the noble Lord, Lord McKenzie, suggest one or two. The green registration process is notoriously lengthy. I might exhibit some of my prejudices here but at the councils which deal with it, particularly county councils, some of the officers who work there—lawyers and bureaucrats, as I would call them, or administrators; I beg their pardon—seem to take an unconscionable length of time. The process of green registration could and should be speeded up.
Where a planning application is made or proposals are made in a plan, there should be a fast-track process and, in particular, a filtering process at the beginning of the stage where quite a few of them could simply be filtered out because they are obviously not going to succeed. I call in evidence an example in my own area where the land belonged to the district council, which was transferring the land to the county council for a new school. The land was a council-owned public recreation ground which clearly failed the tests as to whether it was a green. It was clearly going to fail. It could have been discarded at the first sifting process, if the green registration authority had felt able to do that.
There is a lot to be said for speeding up the green registration process generally, but it is not for this Bill. There is something to be said for changes to the system to deal with the problem of vexatious applications. It is my submission that that can be done very significantly through a change in procedure, process and regulations and does not need primary legislation. If there is to be primary legislation, it should do what the Penfold review proposed and what Ministers initially said the Government wanted to do. The two systems should be aligned rather than taking away people’s rights, which in a minority of cases will result in wrong decisions.
I believe there is a way forward. The amendments I have put forward are mainly to take out the undesirable parts of what is in this clause. I would like to consider this further and come back on Report with amendments that do what the Government want to do, but that do it without abolishing people’s ancient common law and statutory rights on green registration. I beg to move.
Lord McKenzie of Luton
My Lords, we have Amendments 64A, 66A, 69A, 70A, 70B and 70C in this group relating to Clause 14 and Schedule 4. As we have heard, Clause 14 provides that the right to register land as a green ceases on the occurrence of certain trigger events. Partially in response to the noble Lord, Lord Greaves, who was talking more broadly about whether the clause should stand part, I shall start by saying that I think we share the same analysis about the claim that there could be frivolous and vexatious use of these provisions to prevent development and that we are concerned about the lack of hard evidence. We agree that we should try to get a solution that limits the opportunity for those vexatious claims without impairing people’s long-standing rights to obtain town and village greens.
Clause 15 gives the Secretary of State the ability to disapply the triggers from a specific piece of land. Amendment 66A would put a requirement on the Secretary of State to set out in published criteria his reasons for choosing to do that. There may be pieces of land that should be exempt, but we need to be clear about what the instances are, not least because without that clarity we may not see any improvement in the current situation. Community groups will simply turn to the Secretary of State to exclude their piece of land from the triggers to lodge an application. This would be an ideal place to introduce consultation whereby local authorities, some of which have clearly had a number of issues with some town and village green applications, could set out examples of where a town or village green was rightly protected. Similarly, aggrieved community groups, which work extremely hard to protect spaces that they believe deserve protection, would have the chance to advise the Secretary of State of the circumstances that should lead to an exception from the triggers set out in Schedule 4.
Amendment 69A would take out of scope from the restrictions on registration circumstances where the green is in an area that is not covered by a local plan or neighbourhood development plan. Where a local or neighbourhood plan has been put in place and the community has been adequately consulted, the community is likely to have placed protections on its most valued green space. We accept that where there is a neighbourhood plan and there has been good consultation, this is likely to be the case. However, where this has not taken place the community will not have been through the process of identifying the areas it deems to be of most value. Without the amendment, communities could find that by the time they have their say on a local or neighbourhood plan, the precious spaces they want to protect have already been snapped up.
We wish to encourage neighbourhoods to put in place a neighbourhood plan, but there simply has not been time for them to do that since the Localism Act 2011 was enacted. When creating previous plans, parish councils may not have considered the issue in enough detail. It is important that local communities have the opportunity and enough time to identify sites they wish to protect. They can then decide which process is most appropriate for them. We want to move to a situation where those pieces of land are designated under a neighbourhood plan process and, in the mean time, we want to make sure that all communities are able to use the registration processes that are in place at the moment. Local plans are intended to ensure that we get development in the right places and with community support. To take the right to protect land away from communities before the plan-making process has even begun is no way to foster their trust. We do not want to stop vexatious applications being identified; however, we want to ensure that communities that have not yet identified those very special open spaces are not prevented from being able to protect them simply because they do not know that they are under threat.
Amendments 70A, 70B and 70C deal with the trigger events in Schedule 4. When one of the eight trigger events that are set out in the schedule takes place regarding a piece of land, that land can no longer be registered as a town or village green. The amendments would remove three triggers that we think go too far; I think we have common cause with the noble Lord, Lord Greaves, on that.
Amendment 70A would remove the publication of a draft development plan as one of the triggers. A draft development plan will not necessarily have been through all the processes of consultation. Simply having a draft plan in place should not prevent communities being able to bring forward an application for a village green. The draft plan would simply highlight to communities that the site may be at risk from development and enable community members to put their views forward. It is much too early in the development process to rule out the opportunity to propose a particular piece of land. Amendment 70B would remove the publication of a draft neighbourhood development plan as a trigger for exactly the same reasons. Amendment 70C would remove an application for development consent as a trigger.
All three amendments relate to events that do not have to be public, and to documents that might not have been consulted on. The whole point of consultation over a draft plan or planning application is to ensure that the community is on board, and to see if more suitable changes can be made. As such, consultation is an important stage and should not be bypassed by any trigger event.
We also want to ensure that whatever process we end up with, and whatever trigger prevents are in place to prevent the registration of village greens, there is proper consultation on them through neighbourhood plans, local plans or applications for development consent. We do not want to deprive communities of the right to submit a village green application in the large number of instances outlined in Schedule 4. We know that there is a need to rationalise the process somewhat, but Schedule 4 goes much too far in denigrating the rights of local communities.
The three trigger events covered by the amendments are tantamount to saying that consultation together with development consent through documents is nothing more than due process. Otherwise, we have no idea why they are included in the list of trigger events. In reality, it is hardly unknown that a piece of land indentified for development in a draft plan is removed when the public are able to express their views. Often enough, a replacement piece of land can be indentified instead.
On where we have ended up with our amendments to Schedule 4, we are aligned with the noble Lord, Lord Greaves, except to the extent that his trigger events are the granting of planning permission and ours are the application. Of course, we need to take account of terminating events themselves—that is, the application being withdrawn or a decision to grant that permission.
In conclusion, whether we have got this all right is a matter of debate. We would be more than happy to work with the noble Lord if he is going to review this further, to see if there is a better way of dealing with it. We all want to stop vexatious claims which prevent development that a community would support, but hold on to those precious rights to establish town and village greens.
Lord Cameron of Dillington
My Lords, the previous two speakers seem to have included the stand part debate in this group of amendments, so if the Committee will permit it, I will do the same. I speak on the stand part Motion from the point of view of a planning applicant.
First, I am a firm believer in the importance of open spaces for the health and happiness of our nation and our communities. Our love of and need for such open land and our access to it is part of what makes us British. It has been proven that the existence of such open land is a considerable factor in promoting good health and well-being. So we must keep our open spaces as much for our heritage as for the social, environmental and even economic benefits that they bring.
Thus, leaving aside existing town and village greens, and referring to currently unclaimed rights, it is absolutely proper that the fact that people have used a piece of land, or claim that they do, for open access or other activities should be taken into consideration during a planning process. However, I also believe that such claims need to be put into context.
In my experience of our planning system—again, I repeat my interests as a farmer and landowner, and someone who is thus usually a planning applicant—I have found that during any proposal for development, or a proposal to try to drive forward an agenda for economic or social change, there is inevitably an inherent fear of change among the locals and, either genuinely or disingenuously, every enthusiast in the neighbourhood turns up to insist that his or her speciality or special interest is given priority over every other matter. Sometimes these specialists can even be part of the Government; it could be a conservation officer who has personal views about the landscape or about the importance of anything from Georgian windows to Victorian chimneys. It could be a badger specialist or a newt expert, or it could be about bats, which are seen as a vital thing that must be preserved at all costs, although we certainly seem to have enough of them now. Alternatively, there was a case recently near me where Natural England caused an important local development, involving the provision of a much needed school as well as much needed housing, to falter because of dormice. I am glad to say that differences were eventually resolved, but only at a cost.
Equally, the all-important priority for some people is energy, either energy saving or even renewable energy. In the latter case, of course, it is less likely to be a desire to include it than a desire to oppose the means of generating it. Then again, it may be the absence of public transport and available access that is the make-or-break factor in some people’s minds. We have all heard of developments being condemned as unsustainable because they are not served by public transport or because the social services find them difficult to access. It may be a public footpath, or the loss of good agricultural land that is absolutely crucial in the mind of the person putting the idea forward. Of course, there is always flood defence or, as we discussed on Monday, excessive demands for affordable housing. The list of special interests—they really are special interests in people’s minds—goes on and on. Of course, village greens must be included in this list.
All of the above, and no doubt others, are vital in their place, and when you list them it is a wonder any development ever takes place in this country at all. Noble Lords who listened to the debate yesterday on how to “unbecalm” our national economy will be aware that the delays caused by our planning system tended to crop up, mostly focusing on the complications, demands and delays of getting anything done by both small and big businesses.
With regard to Clause 14, it is important that the developer and the local planners address all these “overriding imperatives”. Furthermore, as the world changes, the priority of these imperatives will inevitably chop and change. Thus personally, and here I come to the nub, I think that we need to think very seriously indeed before we allow any of these imperatives to be compulsory or statutory show-stoppers. I am not talking about our protected areas, or even existing town and village greens. But as regards aspirational greens, surely it is up to the planning committee, or even the Secretary of State, to decide what is important in each and every instance. Maybe the problem can be dealt with in another way; maybe if the open space went somewhere else, we could enlarge or even enhance it. We all have to realise that for any approved greenfield, or even brownfield, site development, somebody’s valuable piece of England will have had to be sacrificed—one hopes for considerable social or economic gain. That is what planning controls are all about. Even heritage is not completely sacrosanct. For example, there is the moving of Abu Simbel to allow the flooding of Lake Aswan; it could be said that it is better now than it was before, although I am not proposing that we move any of our historic heritage gems. I am just saying that sometimes it is necessary to think outside the box and a statutory show-stopper will automatically prevent that happening.
It is vital that aspirational town and village greens should form an important feature of the planning system, and they could indeed continue to remain show-stoppers in certain cases if the planning committee so thinks. However, they should not have overriding statutory priority without taking into account all the other priorities that might pertain to a particular development proposal. It is the balancing of all the democratic wishes and needs, both local and central, that planning should always be about.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, as the noble Lord, Lord Cameron, has just said, the stand part debates have suddenly morphed into this other group, which was not small initially and is now even larger.
I wish to make a few brief comments on the clause stand part debate because it is important to put what we are talking about into context. The process to register land as a town or village green can cut across decisions taken in the democratically accountable planning system. Applications to register land as a green can, and have, delayed or prevented development. We have heard, for example, about the implications of this for the affordable homes needed in our communities. Clause 14 addresses these concerns by aligning the process for registering greens with the planning system. Without this clause and the linked Schedule 4, the greens registration system will remain at odds with planning. This would mean that applications to register land as a green could continue to be made on land where planning permission has been granted or which has been identified for development in an adopted local plan or neighbourhood plan. Additionally, applications to register land as a green could cut across consultation with the local community on draft local and neighbourhood plans and planning applications, including those seeking consent for nationally significant infrastructure projects.
At Second Reading there was considerable support for these reforms. Indeed, we were urged to look at more radical changes. The noble Lord, Lord Greaves, considered the problem in relation to planning to be small-scale and said that Clause 14 was an overreaction. He has reiterated that today. However, this clause has been widely supported, including by the Local Government Association, whose member councils bear the responsibilities for planning and determining applications for town and village greens. The association said that these reforms are essential to align the greens registration system with the planning system. The noble Lord, Lord Greaves, mentioned Adrian Penfold, who also gave evidence to the Commons Select Committee. He said modestly that what is in the Bill is a better way of dealing with the problem than he himself came up with in the review of non-planning consents that the previous Government commissioned him to lead.
The proposed reforms do not drive a coach and horses through the ability of communities to protect open land which is important to them; rather, the changes are a proportionate response to a serious problem. They strike the right balance and put decisions on the future of land where they should be taken—in the planning system, which provides an opportunity for everyone to have their say and for all relevant considerations to be taken into account.
I shall deal with the amendments as briefly as I can but there are an awful lot of them. In order to align the registration of town and village greens with the planning system, Clause 14 and Schedule 4 to this Bill insert into the Commons Act 2006 a new Section 15C and corresponding Schedule 1A. The new legislation will not affect existing registered greens, which will continue to enjoy the same strong protection as they currently have. Nor is it our intention that the changes will affect applications to register land as a town or village green where there is no proposed development on the land in question. Equally importantly, the reforms have been carefully drafted to ensure that where an application to carry out development has been considered and rejected, and any appeal rights have run their course, an application to register the land as a green can be considered in the normal way. Each of Amendments 64 to 70C would significantly weaken the proposed reforms to align the village green legislation with the planning system. The combined effect would negate most of what these reforms are intended to achieve. I will explain the damaging consequences of each amendment in turn.
Amendments 70, 70A, 70B and 70C concern Schedule 4, and I shall deal with them first. Amendment 70 would remove the trigger events in Schedule 4 that exclude greens applications when a planning application, or a draft local or neighbourhood plan, is formally publicised for consultation. Instead, the only trigger events would be later in the planning process, when a decision had been taken to grant planning permission, to adopt a local plan or to make a neighbourhood plan that identified land for potential development.
Amendment 70A would have the same effect as Amendment 70 in relation to local plans because it would mean that applications to register land as a town or village green could be made when a draft local plan was being consulted on. We have the same concern about Amendment 70B, whereby a town or village green application could be made where a draft neighbourhood plan was published for consultation. Amendment 70C would have a similar effect to Amendment 70, by removing the protection from town or village green applications that we intend to give to major infrastructure projects between the time when a proposed infrastructure application is publicised and, if that application is accepted by the Secretary of State, an application is publicised again. The trigger events proposed in the Bill were carefully chosen to occur when formal publicity and consultation is undertaken in relation to both planning applications and draft plans. This is the right approach because it will protect both decision-making by democratically accountable local authorities and the ability of communities to engage in meaningful consultation on whether land should be developed or kept open.
Amendment 70 would mean that a town or village green application could be made at any time up to when a decision is made on a planning application, an application under the nationally significant infrastructure regime or a draft plan. Amendments 70A, 70B and 70C would have a similar effect. This would cast into real doubt whether a development proposal could be delivered, and would cause significant delays to development proceeding, if that was the eventual decision taken in the planning process. These amendments cut across meaningful consultation in planning. They would mean that an application to register land as a green could be used to undermine a local community’s ability to engage on whether an area should be developed or kept open, taking account of the need for new homes, work places and infrastructure, as well as concerns such as ensuring sufficient recreation space.
It is absolutely right that people should be able to argue their case that a site should be protected as open space. They can look for support to the National Planning Policy Framework, which gives strong protection for open spaces. The framework also includes the new “local green space” designation, which communities, through local and neighbourhood plans, will be able to use to identify for special protection green areas of particular importance. The appropriate way for people to engage in planning is to use the opportunity that consultation affords, while respecting that others in the community may disagree just as passionately and wish to present different evidence about what decisions on the future use of land would be in the overall public interest. It is our intention, when the outcome of the planning process is a decision not to develop land, that the reforms will not then prevent people applying to register the land as a green.
Amendment 64 would mean that applications could be made to register land as a green up to six months after a trigger event has occurred. The effect would be that even when there was a planning permission, you would have to wait another six months before you could be sure that the development would not be delayed further or even stopped altogether by an application to register land as a green. Equally, where land is identified for potential development in a plan, the community would be penalised by a further six months of uncertainty, despite the fact that the proposals had been through a process of independent examination. In both cases, proposals would have been subject to consultation and careful consideration, but the final determination could be undermined by a registration application. The amendment would be unfair to everyone who benefits from development and would produce an unnecessary threat hanging over delivery of the homes and economic growth that is so urgently needed.
Amendment 64A relates to trigger events in the schedule concerning applications for planning permission or development consent, and would mean that an application for a town or village green could be made at any time up to eight weeks after a planning application or an application for development consent had been made. This would cut across consultation in the same way as Amendment 70 and, for the reasons I have explained, we consider that Amendment 64A is equally flawed.
Amendment 66A would require the Secretary of State to consult on any occasion when he made an order to change the particular circumstances in which a town or village green application could go ahead when it would otherwise have been prevented because a trigger event had occurred. The Government recognise the importance of consultation. Equally, however, it is important to avoid unnecessary bureaucracy. This amendment would mean that the Government would have to consult, however small the change. Consultation is not free and it may not be necessary. We believe that future Secretaries of State should have discretion to decide when it is appropriate to consult and not have their hand forced, with the potential waste of resources that would ensue.
Amendments 65 to 68 would, together, remove new Section 15C(3) to (5) and 15C(7), which provide for secondary legislation enabling the Secretary of State to amend or refine the provisions relating to town and village greens. Instead, any changes that may be needed, however minor and uncontroversial, would have to be introduced through primary legislation.
The order-making powers are important for several reasons. The aim of new Section 15C(3) is simply to give a power to specify the point at which an event had occurred if in practice there was thought to be ambiguity —for example, arising from any future legislative change. Amendment 65 would prevent such uncontroversial and necessary changes.
New Section 15C(4) gives a power to disapply the exclusion of green applications in relation to a specified trigger event, if necessary in the light of circumstances on the ground. Amendment 66 would prevent this.
Amendments 67 and 68 would remove the power contained in new Section 15C(5) and (7) to add to, remove or amend by order any of the trigger or terminating events. However, Clause 14 and Schedule 4 were constructed to encompass only the main planning processes that were included in our 2011 consultation on the reforms to the green registration system. Additionally, we have sought to include in the Bill only the main terminating events. Evidence submitted in the Commons pointed to the need for additional terminating events to ensure that all outcomes in plan-making are covered and that we avoid the situation where the exclusion on green applications fails to lift even where there is no longer an active development proposal. That would be contrary to our policy and I do not believe that it would be something that my noble friend Lord Greaves would want.
With the background that I have just set out, I wish to advise noble Lords of the Government’s intention, if the Bill is enacted, to consult on setting additional trigger and terminating events in relation to development brought forward through other planning procedures—namely, in relation to local development orders, neighbourhood development orders and Transport and Works Act orders. The consultation will also propose additional terminating events to deal with situations which are unlikely to be common but which may arise in local and neighbourhood plan-making, such as where a local plan is found to be unsound but is not withdrawn.
In saying that, I wish to reassure noble Lords that the Government will respond positively to the recommendation of the Delegated Powers and Regulatory Reform Committee that new Section 15C(5) should be subject to the affirmative procedure. An amendment will be brought forward on Report to secure this. Consequently, Parliament will have the opportunity to scrutinise any draft order brought forward in the light of the public consultation.
Amendment 69 would mean that trigger events that occurred before commencement would not have the effect of excluding applications to register land as a green. Consequently, applications could be made on any land on which planning permission had already been granted, even where development had started. Similarly, land identified for development in all existing local plans and those to be adopted in the months before commencement would be vulnerable. Applications to register land as a green in such circumstances would be unfair on all who had invested time and expense in making and responding to planning applications and engaging in plan-making. As with other amendments to this clause, Amendment 69 would hold a threat of delay or derailment over all planned and urgently needed development and growth throughout the country, and that cannot be reasonable or right.
Finally, Amendment 69A would limit the provisions of Clause 14 and Schedule 4 to areas where there is an adopted local plan or neighbourhood development plan. Outside these areas, this amendment would mean applications to register land as a town or village green could be made where a draft local or neighbourhood plan was being consulted on, or where a planning application was being considered. This would mean that in these situations the decision about the future use of land would not be taken through the plan-making process but could instead be decided via the back of an application to register land as a green. For the reasons that I have set out, this would severely undermine the reforms.
We are now seeing good progress made in local plan-making and an encouraging take-up of neighbourhood planning. But not everywhere has an adopted local plan and nowhere yet has a neighbourhood plan. Why in such areas should people engaging in shaping plans have the threat hanging over them that their efforts could be completely undone? For the reasons I have explained, I ask the noble Lord to withdraw the amendment.
Lord Greaves
My Lords, at the heart of this matter is a fundamental difference of view, which I shall turn to in a minute. I thank the Minister for replying in great detail to the amendments, most of which I did not speak to specifically. I discarded my notes on those because I thought I had spoken for long enough. I had listened to myself for long enough even if other people had not. I am very grateful to her for doing that, because it gives me something to go away and read carefully. Many of them were probing amendments to find out what the Government really meant by them. I am grateful for the offer from the noble Lord, Lord McKenzie, to have further discussions on this. I hope that we might have further discussions all round.
There may be agreement between the two Front Benches, but there is a wish, certainly on the part of the Minister and I thought there might be on the part of the noble Lord, Lord McKenzie, to bring the registration of greens, as part of the process of deciding the future of land, into the planning process. The Minister has said that quite clearly on several occasions. She talked about the decisions on the future of land not being bypassed by the registration process and so on.
My submission is that there are two separate systems and that the registration of greens is not part of the planning process because, as clearly set out in the commons legislation, it is a question of the establishment of fact and not a question of what, as a matter of opinion or a matter of planning policy, ought to happen. That is the difference. There are two quite separate processes based on different principles and different legislation. One goes back to commons law, as set out in commons legislation, and the other is the planning legislation which is relatively recent, dating mainly from 1948.
There is a difference of view here. It seems to me that the Government are saying that the planning process, or the ability of communities collectively to make a decision about pieces of land, should always trump the commons registration and greens registration process. I think that they should come out openly and honestly and say so and then we can have that argument. They ought not to be pushing it through as one element of a rag-bag miscellaneous Bill of bits and pieces gathered from all sorts of places. At the moment, we have a problem with a meeting of minds because we come from quite separate areas. Perhaps that can be thought about and talked about further.
Of course, there are practical dangers in what is being proposed. It will be two months after the passing of this legislation—assuming it is passed—that it will commence. During those two months people might start rushing in with registration applications. I do not know whether they will, but they might if they know what is going on.
I have one question for the Minister. I am not sure that I know the answer to it. What happens if a piece of land is subject to a registration for a village green—if an application goes in—and somebody makes a planning application after that? Is making a planning application after an application has been made to register a green a way of trumping it completely? That would run a coach and horses through the entire system set out in Section 15 of the Commons Act. I should like that question answered.
I agreed with a lot of what the noble Lord, Lord Cameron of Dillington, said about the planning system. The purpose of the system is to balance different interests and make a decision. I do not disagree with any of that, and I agree that many of the people who come forward on planning applications have special interests—in particular the people who go out hunting for natterjack toads, great crested newts, various sorts of obscure bats and types of birds of which I have never heard. That always happens. A sensible planning system deals with all that. With respect to the noble Lord, it seemed that what he said was not relevant to this discussion because the green registration system is not part of the planning system. If he and other noble Lords say that it should be and want to change the system, that is a different argument. There would be some big arguments all over the place about that.
Lord Cameron of Dillington
Surely that is the whole point of this clause—to make sure that this problem is addressed by the planning system so that it does not become the statutory show-stopper that it currently is. The noble Lord talked about looking at this from two separate points of view. We are looking at it from that point of view; that is the whole point of the clause.
Lord Greaves
I understand that that may be the purpose of it, at least in certain circumstances—and I agree that it is a show-stopper at the moment. If a piece of land is found to be a green, and if the application is legitimate, that trumps the planning system; there is no doubt about that. If noble Lords do not want that to happen, they should change the system. However, this clause does not do what the noble Lord wants, and it does not do what the noble Lord, Lord McKenzie, suggested that the local planning system should do. There is no way, through a local plan-making system—whether it is a neighbourhood plan or a local plan—to deliver a new green, because that is not part of the planning system. No one can state in a neighbourhood plan, “This will be a village green”, or, “This will be a town green”, unless the owners of the land want to dedicate it as such. Otherwise, no one can do it because the systems are not aligned, or part and parcel of the same process, so the plan-making system will not deliver a green—particularly through a planning application. If a planning application comes in, somebody may come in with an objection and say, “I think that this is a village green because I have kicked a ball about on it for the past 45 years”, but that cannot be dealt with as part of the planning application because it would not be a material consideration. A planning application cannot be turned down on the grounds that something is a village green; it is just not part and parcel of the planning system.
I am in favour of aligning the systems much more than they are now. I am in favour of speeding up the green registration system and making it more modern, and certainly more efficient, than it is now—but this clause does not do it. What it does is abolish the rights that people have under the triggering mechanisms. Having said all that, I will read with great interest exactly what the noble Baroness said. Perhaps we may be able to find at the very least a way forward for Report which improves the proposals that have been made, does away with some of the possible unintended consequences and achieves a degree of consensus. On that basis, I thank noble Lords for taking part in the debate and I beg leave to withdraw the amendment.
Lord Jenkin of Roding
“Deregistration and exchange of land
(1) The Commons Act 2006 is amended as follows.
(2) In section 16(1) for “appropriate national authority” substitute “registration authority”.
(3) In section 17(1) for “national” substitute “registration”.
(4) In section 17(1) for “an order requiring the commons registration authority” substitute “the necessary changes”.
(5) In section 17(7) for “An order under this section may contain” substitute “A registration authority may make”.”
Lord Jenkin of Roding
I promise that this will take substantially less time than the last amendment. This proposed new clause is about the deregistration and exchange of land. It is a very simple point, but it seems entirely in tune with what we have been arguing for for some time—a decentralisation of a lot of these decisions.
Commons legislation already provides that village greens and land can be deregistered. Where the green is significant, you have to provide alternative land. “Significant” is not very big: it is only 200 square metres. That is only 20 metres by 10 metres, which is not very large, but you have to find and agree replacement land. Land can be deregistered, but it requires the approval of the Secretary of State.
That degree of centralisation is now quite unreasonable. Of course it is not the Secretary of State: it goes straight to the Planning Inspectorate from whom there is no appeal except by way of judicial review at enormous expense. This is a decision that could be fairly and properly left to local authorities. That is what the proposed new clause is intended to achieve. I hope that noble Lords find it acceptable. I beg to move.
Baroness Hanham
My Lords, my noble friend laid out the position exactly as it is: the Secretary of State has to reply to an order for land to be deregistered. He also told the House about the release of land where it exceeds 200 square metres in area. The application must include a proposal for other land. If the release land is smaller than 200 square metres, a proposal for replacement land may, but need not, be included.
Commons and greens are a national asset and an important part of our national heritage and culture. They provide open spaces for access and recreation and deliver important benefits for the country. The importance that this Government attach to common land means that any application to deregister commons and greens under Section 16 of the 2006 Act is of national significance. That is why the Secretary of State is responsible for determining Section 16 applications. The function has been carried out by the Planning Inspectorate on his behalf since Section 16 was commenced.
The Planning Inspectorate acts independently and must have regard to the interests of the persons having rights in relation to, or occupying, the release land and in particular persons exercising rights of common over it.
The Secretary of State has reserved his right to recover jurisdiction and takes a close interest in applications where the exchange of land is required for transport, communications or energy infrastructure proposals. The amendment tabled by my noble friend to transfer the function from the Secretary of State to commons registration authorities is made on the basis that such decisions are best made by those commons registration authorities.
Since Section 16 was commenced in October 2007, 27 decisions have been made by the Planning Inspectorate, which equates to around five a year. The commons registration authorities would therefore need to develop more expertise. Commons registration authorities have experience of determining applications to register new greens, but there is no discretion in such applications.
An important issue is what happens when a commons registration authority owns the land for which Section 16 deregistration is sought. There could be some doubt among local people as to whether the authority could demonstrate that it was completely impartial. The rule for other applications under Part 1 of the Commons Act 2006, set out in the Commons Registration (England) Regulations 2008, is that where the commons registration authority has an interest in the outcome of an application, the application must be referred to the Planning Inspectorate for determination. There remain some questions as to how my noble friend’s amendment would provide that reassurance of impartiality.
However, assuming the commons registration authority was to hold its own inquiry, it remains to be seen how it would be quicker and cheaper than is currently the case. Data held by Defra suggest that on average commons registration authorities take between nine and 16 months to process applications under Section 15 to register new greens, which is reasonably comparable in terms of process and is no shorter than the average of nine months that the Planning Inspectorate presently takes for Section 16 applications. Moreover, the estimated average cost of public inquiries ranges between £17,000 and £44,000, which is significantly more than the average cost of £11,200 presently incurred by the Planning Inspectorate.
With those remarks, I hope that my noble friend will be willing to withdraw his amendment.
Lord Jenkin of Roding
My Lords, I will want to take advice on what my noble friend has said. It sounds as if it is a lot more complex than perhaps I had appreciated, and I shall certainly look at it very carefully. In the mean time, I beg leave to withdraw the amendment.