Growth and Infrastructure Bill

Lord Greaves Excerpts

Wednesday 30th January 2013 Lords Chamber

Moved by

[Lord Greaves]

64: Clause 14, page 16, line 32, leave out “if an” and insert “six months after the”

[Lord Greaves]

My Lords, I shall speak also to Amendments 65 to 70, which are grouped; there are some interesting Labour amendments in the same group, which we will discuss with interest. I completely misread the draft groupings when they were issued; I thought that the two stand part debates were part of this group. In practice, I think that it would be sensible if we discuss everything within this group; I will certainly do that and, I hope, we will have nothing else to discuss when we come to the stand part debates, but we will see, because it is impossible to talk about the amendments without talking about the overall principles.

Clause 14 makes provision for the right of people to apply to register land as a town or village green to be stopped by certain trigger mechanisms. In discussion on previous amendments, I referred to the nature of town and village greens, which are based on different law and principles from applications for planning permission, which the clause is really about.

There are two separate systems. There is the procedure for registering greens, which is set out in the commons legislation and which is based on an assessment of the facts on the ground. It either is or is not a green, according to the criteria to which I referred previously, which are that it must have been used by people for informal recreation for 20 years or more without permission, without hindrance, without force and without secrecy. If those conditions apply, a person can apply for it to be made into a green.

Planning permission is completely different; it falls under the Planning Acts. That is a request for permission to use land for a particular purpose, or to build on it, to develop on it, and bears no immediate relationship to the previous or existing use. The problem, and the reason for Clauses 13 and 14, is that it is claimed—with some justification, but less than some people are claiming—that people are making vexatious or frivolous applications to register land as village or town greens, applications that are without foundation, to delay or prevent a particular development. Many of the examples that have been cited concern housing. Little evidence for that has been provided. We have been provided with lists of places where it is alleged that that has taken place, but the evidence is, to put it mildly, a bit thin.

Having said that, I am not challenging the view that it is possible, or the fact that it has happened in some places. I am not challenging the view that it ought not to be possible to make vexatious and unfounded applications for this purpose. The question is how to find an appropriate solution to this problem. Quite a few of the examples that have been provided have been on land owned by the council or by a local authority. The fact that the situation has got to the stage where a green application has been made is essentially down to incompetence by that local authority. However, that is not necessarily a reason why it should succeed.

If we accept the principle that vexatious applications should not be allowed to get in the way of development, how can the Bill tackle it? The Penfold review of non-planning consents looked at this issue as one which was perhaps outside the planning system but which was delaying and possibly stopping development. The Penfold review suggested aligning—an important word—the green registration process, which is a non-planning process, with the planning system where active planning proposals on land existed and where people were making greens applications. It should be said that some of those green applications may have been triggered or stimulated by the planning application but were not necessarily wrong—but let us assume that we are dealing with vexatious applications.

At the beginning of consideration of this Bill Ministers stated quite clearly in briefings that it was their wish to align the planning system and the greens system. Unfortunately, this is not what the Bill does. It defines “trigger events” which are related to planning and the planning process, and which then immediately remove—that is to say, abolish—the rights of people under the green registration process. Instead of aligning the two processes and systems, the Bill is solving the problem simply by abolishing the system that is thought to be getting in the way.

Schedule 4 sets out the trigger events that will be involved. They are to do with either applications for planning permission or the publication of documents under the plan-making system. As far as planning permission is concerned, the trigger event is the moment at which the application is first publicised. A second trigger event is the moment that consent is given. This applies to either planning permission in the normal way or applications for development consent under the infrastructure planning system. There is a lack of logic here. If an event has been triggered by the application first being publicised, one wonders why a further triggering is required when planning permission is granted—but never mind. Those are the two stages at which the process is triggered. Under the plan-making system, the event is the publication of a development plan document or a neighbourhood plan; it is either the publication of a draft of those documents or the adoption of the plan.

My amendments to Schedule 4 look fairly complicated, but all they actually do is to put the trigger events on the adoption of a plan or the granting of planning permission or development consent. In other words, it is the final event in that process in which the land is then allocated for that purpose. I am not arguing that the green application process should not stop if land has active planning permission. As far as plans are concerned, I am not arguing that the green application process should stop if there is an adopted plan. It seems absolutely clear that under those circumstances that is reasonable. Where it seems unreasonable is where it is an initial stage in the process, where no notice is given of it and where people have no reasonable opportunity to know that it is going to happen—and it immediately stops. That does not align the greens process with the planning process; it simply stops the greens process in its track.

There are various ways, which I have not set out in detail in the amendments, in which the alignment of the process can take place: I think the amendments tabled by the noble Lord, Lord McKenzie, suggest one or two. The green registration process is notoriously lengthy. I might exhibit some of my prejudices here but at the councils which deal with it, particularly county councils, some of the officers who work there—lawyers and bureaucrats, as I would call them, or administrators; I beg their pardon—seem to take an unconscionable length of time. The process of green registration could and should be speeded up.

Where a planning application is made or proposals are made in a plan, there should be a fast-track process and, in particular, a filtering process at the beginning of the stage where quite a few of them could simply be filtered out because they are obviously not going to succeed. I call in evidence an example in my own area where the land belonged to the district council, which was transferring the land to the county council for a new school. The land was a council-owned public recreation ground which clearly failed the tests as to whether it was a green. It was clearly going to fail. It could have been discarded at the first sifting process, if the green registration authority had felt able to do that.

There is a lot to be said for speeding up the green registration process generally, but it is not for this Bill. There is something to be said for changes to the system to deal with the problem of vexatious applications. It is my submission that that can be done very significantly through a change in procedure, process and regulations and does not need primary legislation. If there is to be primary legislation, it should do what the Penfold review proposed and what Ministers initially said the Government wanted to do. The two systems should be aligned rather than taking away people’s rights, which in a minority of cases will result in wrong decisions.

I believe there is a way forward. The amendments I have put forward are mainly to take out the undesirable parts of what is in this clause. I would like to consider this further and come back on Report with amendments that do what the Government want to do, but that do it without abolishing people’s ancient common law and statutory rights on green registration. I beg to move.

--- Later in debate ---

[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.

Amendment 64 withdrawn.