Growth and Infrastructure Bill

Lord Jenkin of Roding Excerpts

Wednesday 30th January 2013 Lords Chamber

Moved by

[Lord Jenkin of Roding]

71B: After Clause 15, insert the following new Clause—
“Deregistration and exchange of land
(1) The Commons Act 2006 is amended as follows.
(2) In section 16(1) for “appropriate national authority” substitute “registration authority”.
(3) In section 17(1) for “national” substitute “registration”.
(4) In section 17(1) for “an order requiring the commons registration authority” substitute “the necessary changes”.
(5) In section 17(7) for “An order under this section may contain” substitute “A registration authority may make”.”

--- Later in debate ---

[Lord Jenkin of Roding]

I promise that this will take substantially less time than the last amendment. This proposed new clause is about the deregistration and exchange of land. It is a very simple point, but it seems entirely in tune with what we have been arguing for for some time—a decentralisation of a lot of these decisions.

Commons legislation already provides that village greens and land can be deregistered. Where the green is significant, you have to provide alternative land. “Significant” is not very big: it is only 200 square metres. That is only 20 metres by 10 metres, which is not very large, but you have to find and agree replacement land. Land can be deregistered, but it requires the approval of the Secretary of State.

That degree of centralisation is now quite unreasonable. Of course it is not the Secretary of State: it goes straight to the Planning Inspectorate from whom there is no appeal except by way of judicial review at enormous expense. This is a decision that could be fairly and properly left to local authorities. That is what the proposed new clause is intended to achieve. I hope that noble Lords find it acceptable. I beg to move.

[Baroness Hanham]

My Lords, my noble friend laid out the position exactly as it is: the Secretary of State has to reply to an order for land to be deregistered. He also told the House about the release of land where it exceeds 200 square metres in area. The application must include a proposal for other land. If the release land is smaller than 200 square metres, a proposal for replacement land may, but need not, be included.

Commons and greens are a national asset and an important part of our national heritage and culture. They provide open spaces for access and recreation and deliver important benefits for the country. The importance that this Government attach to common land means that any application to deregister commons and greens under Section 16 of the 2006 Act is of national significance. That is why the Secretary of State is responsible for determining Section 16 applications. The function has been carried out by the Planning Inspectorate on his behalf since Section 16 was commenced.

The Planning Inspectorate acts independently and must have regard to the interests of the persons having rights in relation to, or occupying, the release land and in particular persons exercising rights of common over it.

The Secretary of State has reserved his right to recover jurisdiction and takes a close interest in applications where the exchange of land is required for transport, communications or energy infrastructure proposals. The amendment tabled by my noble friend to transfer the function from the Secretary of State to commons registration authorities is made on the basis that such decisions are best made by those commons registration authorities.

Since Section 16 was commenced in October 2007, 27 decisions have been made by the Planning Inspectorate, which equates to around five a year. The commons registration authorities would therefore need to develop more expertise. Commons registration authorities have experience of determining applications to register new greens, but there is no discretion in such applications.

An important issue is what happens when a commons registration authority owns the land for which Section 16 deregistration is sought. There could be some doubt among local people as to whether the authority could demonstrate that it was completely impartial. The rule for other applications under Part 1 of the Commons Act 2006, set out in the Commons Registration (England) Regulations 2008, is that where the commons registration authority has an interest in the outcome of an application, the application must be referred to the Planning Inspectorate for determination. There remain some questions as to how my noble friend’s amendment would provide that reassurance of impartiality.

However, assuming the commons registration authority was to hold its own inquiry, it remains to be seen how it would be quicker and cheaper than is currently the case. Data held by Defra suggest that on average commons registration authorities take between nine and 16 months to process applications under Section 15 to register new greens, which is reasonably comparable in terms of process and is no shorter than the average of nine months that the Planning Inspectorate presently takes for Section 16 applications. Moreover, the estimated average cost of public inquiries ranges between £17,000 and £44,000, which is significantly more than the average cost of £11,200 presently incurred by the Planning Inspectorate.

With those remarks, I hope that my noble friend will be willing to withdraw his amendment.

[Lord Jenkin of Roding]

My Lords, I will want to take advice on what my noble friend has said. It sounds as if it is a lot more complex than perhaps I had appreciated, and I shall certainly look at it very carefully. In the mean time, I beg leave to withdraw the amendment.

Amendment 71B withdrawn.