Housing and Planning Bill

Debate between Baroness Byford and Lord Greaves

Wednesday 23rd March 2016 Lords Chamber

[Lord Greaves]

My Lords, I declare my interest as the vice-president of the Open Spaces Society, as well as my other outdoor activity interests, which are in the register.

This amendment is a sledgehammer to crack a nut. The noble Lord makes it sound as though the countryside of England is a nightmare. This is absolutely not true. There are perfectly workable procedures for dealing with the kinds of circumstance described by the noble Lord, Lord Skelmersdale. In particular, Defra has found a mechanism through the stakeholder working group, which represents people from all parts of the countryside, from recreation to landowners and other users. This is a mechanism by which changes in the law take place by agreement and consensus. It has been extremely successful, has worked very well and continues to do so. To drive a coach and horses through that at this or at any stage would be very unwise. I hope that the Minister will explain that, apart from anything else, the amendment really does not belong in this Bill.

[Baroness Byford (Con)]

My Lords, this amendment has my name attached to it. My noble friend has gone into the detail of it, so I will not repeat that. The noble Lord, Lord Greaves, knows that we had quite a long discussion on this issue in considering the Deregulation Act. While he said that on the whole people do not abuse it, trouble is still being caused. He may say that this is not applicable in this Bill, but I think that it is. I shall be referring later to towns and cities as well, so I hope that he will stay with me and forbear my support of this.

It was said at that time by the Open Spaces Society:

“We consider that the discretionary power of moving paths should have low priority and we advocate that councils refuse to consider a path change unless there is a clear public benefit. Otherwise they are using their slim resources on a mere power, to the advantage of owners and occupiers rather than the public, instead of on the duty which benefits everyone”.

This is a very difficult situation. I do not think that the amendment is a sledgehammer to crack a nut. Clearly there are families who are finding this extremely difficult. It was suggested that the working group would get together and that that difficulty would be resolved, and clearly that has not happened. I support my noble friend in raising the issue today.

I move on to a concern—I have given the Minister notice of it—that has been raised with me on existing public paths, as they are, in cities and towns. Public paths that were incorporated into building developments in the 20th century were often acknowledged and placed on a definitive map as part of the planning process. In towns and cities, however, the Edwardian and Victorian developments often included paths to enable easy foot passages from one place to another. The land over which they pass may still belong to the estate upon which the development was constructed, or may have been sold to individual householders, or acquired by the local authority.

The reason that I raise this today is to make sure that, in the enormously important work that we are doing with the Bill, there will not be reflection later on something that we should have spotted at the time. As I said, I have given the Minister notice and it was obvious to me that the issue raised by my noble friend Lord Skelmersdale has not been resolved. I want to ensure that we do not walk into another difficult situation.

Localism Bill

Debate between Baroness Byford and Lord Greaves

Monday 20th June 2011 Lords Chamber

[Lord Greaves]

My Lords, in moving Amendment 19, I shall speak also to Amendments 20 and 24, but I should it make it absolutely clear, in view of the discussion on the previous grouping, that I am not speaking to Amendments 21 and 25 as they are substantively the same as Amendments 22 and 23, which we discussed in the previous group. There is no point in going over them again.

Amendments 19 and 20 seek to change the word “provision” to the “order” so as to assist the Government in making these clauses more understandable. There are two uses of the word “provision” in Clauses 5 and 6. In Clause 5(1) the word “provision” refers to existing statutory provisions, while in Clause 6(1), where I want to make these changes, the word “provisions” refers to an order made under Clause 5(1), so “provision” means two quite separate and different things. For anyone reading the Bill, it is not entirely clear until you have sorted it out that that is the case. It is easy to solve the problem simply by calling them “orders” in Clause 6(1) rather than provisions. They are orders, and while I do not expect the Minister to say that we can have the amendment, I hope that she will look at it and see whether the Bill can be tidied up in this sensible way, or by doing something similar that would satisfy the draftspeople.

The third amendment in the group, Amendment 24, is rather more substantial. It arises from concerns expressed by the Open Spaces Society about the effect that the Bill may have on special pieces of land that at the moment are protected under trust rights. The amendment seeks to insert the words,

“the provision does not remove or amend any trust or right of the public, or repeal or amend any statutory procedure (whenever passed or made) for the removal or amendment of that trust or right”.

The society is worried that even with the limitations proposed, the general powers could be used to enable local authorities to do whatever they want with open spaces and public access land.

Clause 1(1) enables a local authority to do anything that individuals generally may do. It is suggested that the Government either amend the Bill or give a Pepper v Hart undertaking that the Bill or any action under it will not bypass existing legislation in order to authorise a local authority or Minister to use, appropriate or dispose of land which is subject to special protection or conservation, or relax any existing procedures relating to that land.

There are some public interests which are considered so special that they are given particular statutory safeguards to prevent them being easily abolished or altered. One example is a highway, whether it is a motorway, public footpath or anything in between. Another example is an open space or park which may have been subject to a specific statutory trust when first transferred to a local authority, such as under Section 10 of the Open Spaces Act 1906, or is deemed to be held in trust for the use of the public under a judgment of the House of Lords in 1897 known as the Brockwell Park case. No doubt noble Lords have the details of that at their fingertips—I do, but I shall not read it all out in great detail.

The Bill’s general power does not appear to be intended to be extended to relax the existing special procedures for the protection of these public trusts or rights, but there is a risk that attempts will be made to argue that it does so once it is passed. The Government are therefore asked either to insert a provision clarifying this point or at the very least to give an assurance to the Committee today or subsequently.

I have with me a fascinating document which is a photocopy of a Times law report dated July 1897. I would be delighted to read it to the Committee, but will not do so. It sets out the details of the judgment to which I referred.

My final point is rather more modern. The Government are committed under the coalition agreement and various policy statements that have been made in the past year to the creation of a new green space designation. How are such new green spaces, which will be provided under what the Government are proposing, to be safeguarded unless they are held under one of these protective statutes or a restrictive covenant that cannot be easily released? I do not expect the Minister to be briefed on that question, but it needs to be thought about in wider government policy. If it is their intention to provide a significant number of new protected green spaces under some designation or other, which is the Government’s excellent policy particularly in urban and suburban areas, how are they to be protected? Whether the Minister can dig out any information on the latest government thinking and let us know about it, I do not know, but it would be very helpful if she could. I beg to move Amendment 19.

[Baroness Byford]

Can my noble friend enlarge on his Amendment 24? I am not quite sure that I understand it correctly as he has proposed it. Does it mean that any current public open space or public access land could not be altered even if a local community wanted it? He will be well aware of cases where, following subsidence of cliffs, footpaths have had to be altered. I would hate to think that, in some way, his well intentioned amendment would restrict what local supporters of open access might be able to do. Has he considered that problem?

[Lord Greaves]

I am not a lawyer but lawyers could look at the amendment to see whether the wording is wrong. The amendment is not intended to apply to access land designated under the Countryside and Rights of Way Act 2000, whether it be mountain, moorland, heath or down; it is also not intended to apply to commons because they have separate protection under the Commons Act; nor is it intended to apply to coastal access land covered by the 2000 Act. It is intended to apply to open spaces such as local parks, local mini parks, amenity land and so on which have been provided in the past under a trust deed or conditions of transfer to local authorities. I am no expert on this—nor, I imagine, is the noble Baroness—but it is intended for land which is protected not by general legislation but which has particular circumstances and particular legal conditions attached to it.

[Baroness Byford]

Perhaps the Minister will clarify this when she responds because I am still not quite clear. If local people decide that they want to alter the space, or whatever it is, I am concerned that if the amendment goes through as it stands that would not be possible. I still may not be right and I should like some clarification.