Growth and Infrastructure Bill

Lord Cameron of Dillington Excerpts

Wednesday 30th January 2013 Lords Chamber

[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.

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[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.