Localism Bill

Baroness Byford Excerpts

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.