English Devolution and Community Empowerment Bill

Lord Grabiner Excerpts

Thursday 5th March 2026 Grand Committee

I urge Members to treat with considerable caution the frankly fallacious and misleading briefings in some quarters about this amendment. It does not make it easier to get planning permission to develop open space. The planning protections are unchanged. It is untenable to say that this is the same amendment, or even substantially the same, as the previous one. It is deeply layered with new safeguards, including a requirement to advertise so as to make good any previous failure to advertise the sale. To repeat: the discharge order may be made only if judged to be in the public interest. Only those with private interests that they wish to protect at the expense of the public interest can be worried about that. I beg to move.

[Lord Grabiner (CB)]

My Lords, I support this amendment and have added my name to that of the noble Lord, Lord Banner. I am afraid that the noble Lord, Lord Pannick, is unable to be with us this afternoon and apologises to the Committee for his absence. The background has been well explained by the noble Lord, Lord Banner, and I shall emphasise a couple of points.

The purpose of the amendment is to reverse the decision of the Supreme Court in the case of Dr Day v Shropshire Council. In paragraph 116 of her judgment, Lady Rose very fairly said:

“I recognise that this leaves a rather messy situation”.


The mess referred to by the learned Supreme Court Justice is that, although the land was acquired by the purchaser in good faith and for value, and the Local Government Act 1972 expressly confirmed that a good title passed to the purchaser, the fact that the local council failed to advertise the proposed sale in local newspapers for two weeks meant that the public right to go on the land for recreational purposes remained in place. As a result, the land cannot be developed and, as the noble Lord, Lord Banner, suggested, it is blighted, effectively forever, because the original failure to advertise cannot ever be put right. Also, your Lordships will readily appreciate that the original sale by the local authority in such cases may have taken place many years earlier, which would likely give rise to the key evidential question: was the original sale properly advertised? It would be impossible to go back to the records in a case that had happened many years earlier.

The noble Lord, Lord Banner, explained what happened in Committee and on Report during the passage of the Planning and Infrastructure Bill, and I need not repeat the history. That said, when this issue was before this House, concerns were expressed by some noble Lords about the form and content of that amendment. The concern—I hope that I summarise it accurately—was that the amendment would merely have reversed the decision in the Day case, leaving members of the public who are concerned to protect recreational space with no ability to challenge a proposed sale.

Amendment 222C takes full account of that concern. It would make provision for a robust public consultation process; it would mean that an application would have to be made for a statutory trust discharge order, associated with strict requirements for the giving of notices and the publication of suitable local advertisements. Before making the order sought, the Secretary of State would be obliged to take account of all comments received and would have to be satisfied that the qualifying conditions were met, as per proposed new Section 128A(2)(b). The qualifying conditions are precise and stringent, as laid out in proposed new Section 128D. Most importantly, new publicity requirements, as set out in proposed new Section 128E, would have to be complied with, as per proposed new Section 128(D)(9), and the Secretary of State would have to be satisfied—this is critical—that it was in the public interest for the relevant land to be freed from the public trusts by virtue of the order, as per qualifying condition F in proposed new Section 128D(10). I inserted the word “public” there for clarification purposes. The public interest is fully defined. I do not need to repeat what the noble Lord, Lord Banner, already said on that point, but it is defined in the widest possible terms in proposed new Section 128D(11).

I appreciate that there are more wide-ranging concerns regarding recreational space and general well-being, as expressed by the Campaign to Protect Rural England and others. For those groups, we are told, this amendment does not go far enough. I will respectfully make two points on that. First, this amendment has a very precise scope. It is not concerned with the much wider political issue of—

[The Deputy Chairman of Committees (Baroness Morgan of Drefelin) (Lab)]

My Lords, there is a Division in the Chamber. The Committee will adjourn for 10 minutes.

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[Lord Grabiner (CB)]

My Lords, your Lordships will pleased to know that I have accepted the advice of others that it would not be acceptable for me to start again. I had actually reached the last paragraph before we were—I will not say rudely, but I simply say—interrupted by the Division Bells. I was just about to make my two closing points. These were in response to the suggestion from various interested groups outside whose contention is that Amendment 222C does not go far enough. I shall make two points in response to that suggestion.

First, the amendment has a very precise scope. It is not concerned with the much wider political issue of parks’ trusts and protections. In my view, it should not be caught up in, or delayed by, that distinct political debate—it is a separate issue. The second point is that, for practical purposes, the amendment would actually produce significant improvements in the law. The advertising requirements in the 1972 Act are minimal compared with the amendment. If the local authority had complied with the simple requirement to advertise locally for two weeks, Dr Day’s claim would have failed. Indeed, he would never have started the action.

[Lord Lucas (Con)]

My Lords, my noble friend Lord Banner, unsurprisingly, makes an eloquent case for his Amendment 222C. I very much hope that the Minister will hold to what she said when this issue was addressed previously and reassert the Government’s commitment to a wider review of the existing protections to bring coherence to the legal framework, making protections more transparent and accessible so that communities can protect their most valued spaces, to paraphrase what she said.

At the heart of the amendment lies the travails of the All England Lawn Tennis Club. I declare an interest as a resident of Eastbourne and, therefore, as someone who holds a very low opinion of that organisation, which seems to be entirely concerned with itself and its money and very unconcerned with the communities that it interacts with. That is a widely shared opinion, as noble Lords will know—although they may not agree with it.

The troubles that the ALTC is facing have roots in the predecessors of assets of community value. We have long considered that communities have rights when it comes to the places and spaces that they enjoy. These have grown complicated and difficult to understand and enforce, which is why the Minister’s review is needed. But these places and spaces are needed and should be respected.

In this particular case, the ALTC has behaved abysmally, and it should not be advantaged by shortcutting what should be a careful review. I would like to see it soon and done with speed, but it should be an open public review, involving national bodies and others that are interested in the protection of public trusts and recreation rights to arrive at a coherent, well-agreed solution to this problem. To do it by way of an amendment in a Bill is far too limited; there are far too few opportunities to really get into the competing rights and interests that are involved here. I urge the Minister to stick to her previous resolution.

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[Baroness Pinnock (LD)]

I was making a point about public consultation. Since the land is held by a trust for public benefit and for the public good, it seems to me that some consideration should be given to giving the people who benefit from that trust—the community; I am sure it could be defined—some sort of veto over any change in the status of the land held in public trust. Obviously, it could not be just half a dozen folk thinking that it should not happen, but if there were a huge swell of public opinion in favour of keeping the land in a public trust, as was done many years before, maybe that ought to be an option for local people.

There are various places across different parts of the country where the council’s own land in public trust would be affected if this amendment were accepted by the Government. The ones I have been able to find—apart from Wimbledon, of course—include Winchester, Swansea, Finchley, Hornsey and many others. Once a statutory trust discharge order takes effect, the land would be freed from the trust “generally”. Its status would be altered for all time, regardless of who holds the title. We should not enable a statutory loophole in this amendment that would allow the procedural errors of the past to become the justification for stealing the green lungs of our communities in the future. As noble Lords might have realised, the Liberal Democrats strongly oppose this amendment and stand on the side of communities that strive to protect the integrity of our public open spaces held in trust.

I finish with a common little rhyme that emerged from the 18th century when the enclosures were taking place at great pace—when common land was taken by landowners. It goes:

“The fault is great in man or woman,


Who steals a goose from off a common;

But who can plead that man’s excuse,

Who steals the common from the goose?”

[Lord Grabiner (CB)]

Before the Division Bells, the noble Baroness was very dismissive of the consultation process, which is spelled out in the amendment. She referred to what sounded like her own unpleasant experience of such processes in the past. I wonder whether, on reflection—we have had a bit of time to reflect during the break—she thinks that a fair criticism of the amendment.

[Baroness Pinnock (LD)]

My Lords, the difficulty the public have with the word “consultation” is that they often dismiss it as being a mere sop by those who want to change the order of things, whatever that might be. Consultation is frequently used; it is a basic part of the planning process. Often, members of the public make representations based on planning law, the NPPF and local plans, but nevertheless the developers overcome those objections. It is the same with changes to the structure of local authorities. Consultation has become, “You can have your say, but in the end you’re going to be overruled”.

With something as serious as this, where land has been donated for public use for many years and held in trust—a word we need to reflect on—for public use, it should not be easy to remove that public trust, in effect removing the public from the trust. In my view, using a device called consultation is totally inadequate in those circumstances. There ought to be a different way of determining whether land should be taken out of that protection.