Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2014

Lord McKenzie of Luton Excerpts

Tuesday 28th January 2014 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston) (Con)]

My Lords, if this order is agreed by your Lordships’ House, it will become an order of 2014. The effect of the order will be to stop town and village green applications where there is an active development interest in land and enable them to proceed where a development proposal is no longer active. The order is part of our overall programme to streamline and simplify the planning system, which in turn is about our proposals to deliver growth. The order addresses overlapping consent regimes. Applications for town and village green registration can cut across planned and permitted development. The order will ensure that decisions on the use of land are taken through the planning system, where there is proper provision for the public to get involved and express their views.

As noble Lords will know, the Growth and Infrastructure Act already excludes town and village green applications where development is under consideration or approved. Under the main parts of the planning system—planning applications, development plans and nationally significant infrastructure projects—the exclusion is engaged by a range of “trigger events”. The Act enables applications for town and green registration to resume if a development proposal is withdrawn or rejected, as set out in “terminating events”. The principle of what we are proposing is therefore already established and was extensively debated during the progress of the Growth and Infrastructure Bill. During the debates on that Bill last year, my predecessor, my noble friend Lady Hanham, said on behalf of the Government that we intended to extend the provisions to development under other planning procedures. We explained that we needed to consult on these extensions. Having done that, this order delivers on that commitment.

The proposals in this order deal with two matters. First, the provisions in the Act relating to local and neighbourhood plan preparation did not cover every eventuality. We need to ensure that all outcomes in plan-making are covered. That is why we are proposing a new catch-all terminating event for local or neighbourhood plans, which will ensure that, in those cases where a draft plan has not been adopted or made within two years of its publication by the local planning authority, the exclusion on the right to apply for registration of land as a green lifts. In other words, the opportunity returns to local residents. This is to avoid the situation where the exclusion on town and village green applications remains in place even where development is no longer proposed under a plan. This proposal has been welcomed by the majority of respondents to the consultation.

Secondly, the order extends the protections to local development orders, neighbourhood development orders and applications for deemed planning permission in respect of Transport and Works Act 1992 orders. What those measures have in common is the ability to grant deemed planning permission for development, meaning that a developer does not have to apply separately for planning permission from their local planning authority.

This order sets out trigger and terminating events for each of these procedures, to signal when a town or village green application must be excluded and when it can resume. If proposals are ultimately not taken forward under these measures then the terminating events will ensure that the right to apply for town or village green registration will resume. We think it only reasonable to introduce protections for development under consideration through these measures. Again, the principle of this is supported by respondents to the consultation. It makes for a consistent and open system.

There are requirements within planning legislation to ensure that people have opportunities to engage with the planning process and that their views are known when these measures are prepared. These changes will apply only to applications to register new town and village greens. Applications sent before the date that the order comes into force will be unaffected, and the changes will not weaken the strong protections which existing registered greens have.

These proposals are uncontroversial and indeed have been broadly welcomed during our consultation process. They ensure that land cannot be registered as a town or a village green to prevent the consideration of development, or to frustrate and delay planned and permitted development. Instead, it means that decisions about development will take place in the context of the planning system, which provides for public involvement and where all material considerations are taken into account. However, it also means that when development does not go ahead, the right to apply for registration of a green will not be unnecessarily excluded. In those circumstances there is no reason why communities should not be able to apply to register the land as a green.

I therefore commend this order to the Grand Committee. I beg to move.

[Lord McKenzie of Luton (Lab)]

My Lords, I thank the Minister for her introduction to this instrument, which takes us back to the issue of town and village greens. This is a matter, as the Minister noted, that we discussed with the help of the noble Lord, Lord Greaves—our world expert—in connection with both the Growth and Infrastructure Act and the Localism Act.

In those debates, the noble Lord, Lord Greaves, stressed the particular difficulty of aligning two disparate systems, the procedure for registering greens, as set out in commons legislation, and the planning regime, although the Growth and Infrastructure Act effectively aligned them in favour of the planning regime. We should restate our support for measures that prevent frivolous and vexatious use of provisions to prevent development but also our concern about the scope of some of the original triggers, and the paucity of some of the evidence base.

We also share concerns over the consultation process, a matter focused on by the Secondary Legislation Scrutiny Committee. I quote from paragraph 7 of its report, which states,

“We sought further information from DCLG about the timing of the consultation process. We have previously made clear our view that six weeks should be regarded as the minimum feasible consultation period, and that holiday periods should be avoided. The consultation process in this case included some three weeks in August. We are publishing DCLG’s responses …We note that the Department states that it ensured that those likely to be interested were directly made aware of the proposed consultation, and that no respondents expressed concern about the length or timing of the consultation. While this is welcome, it does not change our view: putting proposals out to consultation must allow for the possibility that potential respondents not previously identified by the Department are able to offer comments, and consulting over a holiday period cuts across this possibility”.

I will deal first with the two new terminating events: where a draft local plan is not adopted, or a neighbourhood plan is not made by the end of two years. As part of the justification for this, the impact assessment cites evidence on the timing of plan preparation. Can the Minister expand on this point so that we know more precisely what that evidence is? We are told that no development orders have been made to date—I think that that was as of 4 December—and I presume this is still the position, so none of the responses to the consultation in that regard is based on actual experience. However, all in all, recognising the benefits of some consistency in these terminating events, we believe these should be supported.

On the additional triggers and terminating events covering local development orders and neighbourhood development orders, again we are told that the use of local development orders has been relatively limited. Perhaps we can understand a little bit what that means. How many actually are there? Given the circumstances where they have or might be used, what is the assessment of the practical likelihood of attempts to register town and village greens? It would appear that one terminating event for the draft order granting permission for operational development—that is, the adoption of the order—is indeed the trigger event for the local development order.

Similar questions arise over local development orders. Given their expected focus as specified types of development within a defined area or on specified sites, what is the experience of any TVG applications? Terminating and trigger events criteria are to be adopted for Transport and Works Act orders, as we have had explained. Can the Minister say whether any such orders have been frustrated by a TVG to date? Can she give us an update on the number of TVG applications? The most recent figures that I have show a drop from 196 applications in 2008 to 103 in 2011. These numbers must be seen in the context of some half a million planning applications in the year ending June 2010.

The documentation that we have makes reference to the designation of land as local green space under the NPPF and suggests that this in a sense might be an equivalent to a TVG application. Paragraphs 76 and 77 of the NPPF state:

“Local communities through local and neighbourhood plans should be able to identify for special protection green areas of particular importance to them. By designating land as Local Green Space local communities will be able to rule out new development other than in very special circumstances. Identifying land as Local Green Space should therefore be consistent with the local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services. Local Green Spaces should only be designated when a plan is prepared or reviewed, and be capable of enduring beyond the end of the plan period”.

I support that. It goes on to say that:

“The Local Green Space designation will not be appropriate for most green areas or open space. The designation should only be used … where the green space is … reasonably close … to the community it serves; … where the green area is demonstrably special to a local community and holds a particular local significance, for example because of its beauty, historic significance, recreational value (including as a playing field), tranquillity or richness of its wildlife; and … where the green area concerned is local in character and is not an extensive tract of land”.

I know that the NPPF is relatively new but how is that provision being interpreted and taken up in local and neighbourhood plans to date? Do the Government see it as effectively an equivalent to the TVG application?

We will not seek to resist this instrument. We are, of course, supportive of arrangements for local communities to be able to promote, support or object to development in their areas through a plan-making process. However, there is just a sense that this has unnecessarily tipped the balance against local inhabitants who seek no more than to register land over which there has been 20 years or more indulgence in lawful sports and pastimes.

[Baroness Stowell of Beeston]

I am grateful to the noble Lord, Lord McKenzie, for his support, in principle, for the order. I will deal first with the point that he raised about the consultation period. As he acknowledged, prior to issuing the consultation document, we identified a list of interested parties, who were notified of the proposals on the first day of the consultation period. None of them expressed concern about the length or timing of the consultation. Clearly we ensure, as we did in this case, that we act in accordance with Cabinet Office guidelines on consultation, and look carefully at the nature and impact of proposals in considering the length of time for consultation. We felt that six weeks was reasonable and proportionate, as the measures proposed here are an extension of measures consulted on and debated in the House during the passage of the Bill last year. The principle was there and in place, and we feel that the consultation approach that we undertook was appropriate for these measures.

The noble Lord raised a couple of points around the evidence of the need for the measures in the order. I will see in a moment whether I can provide him with some specific data in response to that question but the point to stress is that the extension of the trigger and terminating events supports the policy objective that decisions on the use of land should be taken through the planning system and related consent regimes. If we did not address that gap through this order, we would leave the system incomplete. It might mean, for instance, that a town or village green application could be used to block developments supported by a local community through a neighbourhood development plan and that applications for deemed planning permission in respect of important infrastructure works under the Transport and Works Act could be delayed or prevented. As I tried to make clear in my opening remarks, it is also about making sure that, at a point at which the application for development under either of those schemes does not transpire, it should be possible for local people to put forward an application to make a piece of land a town or village green. We want that to be possible and we want it to be clear when that should take place.

That leads me on to the noble Lord’s points about the two-year limit and why we have used that timeframe. We believe that a two-year period strikes the right balance and should allow sufficient time for local planning authorities and others to get a plan or order in place, including any amendment or consultation that is required. At the same time, it is not so long as to exclude town and village green applications for an unnecessarily long period that would place no onus on the local planning authority to undertake a plan or order-making expeditiously. This is something that we will of course keep under review as more evidence becomes available. There are powers in the Commons Act to amend the legislation should it become necessary.

The noble Lord raised the question of local development orders and whether their existence might prevent applications for town and village green registration. Parliament has agreed the principle that the planning system should not be held up or derailed by the town and village green registration system. Local development orders are prepared by local planning authorities and are usually focused on a specific area where the authority wishes to encourage development, for example enterprise zones. A local planning authority that brings forward a local development order must justify it or believe that, where built development is proposed or permitted, the right to apply for a town or village green should be excluded.

The noble Lord quoted from the National Planning Policy Framework document and asked some questions about it. The document allows communities to designate land that is special to them. There is no requirement for use of land by the public. I am struggling to understand this. I shall say what I think is the answer to the noble Lord’s question and if my colleagues want to shove that piece of paper at me again, I will go back to it. My understanding is that communities may consider using the new local green space designation introduced in the National Planning Policy Framework. Local communities can identify land of particular importance to them for special protection as local green space either by engaging with their local planning authority in the local plan-making process or by taking steps to bring forward a neighbourhood plan. My interpretation of that is that if, as part of drawing up a local plan, a local community designates an area in that way as part of that framework, it is then given the equivalent status of a town and village green.

The noble Lord asked about recent data on TVG applications. Defra has obtained and published data up to 2011. New data covering 2011 to 2013 will be published in the coming weeks. He asked whether any TWA orders have been frustrated to date by TVG applications. The answer is no but inclusion of TWA applications in the legislation is a precautionary measure that will ensure that the TVG application process is in line with the planning system in all circumstances, the point being that this is about principle as much as it is about other things. I can write to the noble Lord if there is anything further that I need to tell him on that.

I need to correct something that I said earlier. Local green space does not have the same protection as that involved in registration as a town and village green but has similar protection to the green belt. That is the relevant comparison, so I was wrong in my previous comment. The relevant comparison is with the green belt and not with the town and village green. I hope that I have covered most of the points that the noble Lord raised. As I say, if I can add further specific points in a letter to supplement my comments, I will do so.

In conclusion, the introduction of this order will ensure a consistent approach to town and village green registration in situations where a development is proposed or permitted. It will help to stop the potential for misuse of town and village green applications to undermine planned development. It will address overlapping consent regimes and reduce delay, uncertainty and cost to all concerned. It is an important precautionary measure, as I have already said, and will not affect the existing strong protection for registered town and village greens.