Mr.
Truswell: I want to speak on this clause not only because,
as I made clear on Second Reading, I have a particular constituency
interest, but because I have observed the process that my constituents
have had to go through in some detail. I caution Committee members
against the comments of the hon. Member
for South-East Cambridgeshire—and also, I have to say, of my hon.
Friend the Member for High Peak—in respect of adopting a lowest
common denominator approach that aims to prevent the few cases of
abuse, but at the same time throws the baby out with the bathwater in
terms of the many legitimate applications that have been
made—some of which are in abeyance—and that I am sure
will be made in the future.
Part of the problem is that the
hon. Member for South-East Cambridgeshire predicates his view and
approach on the belief that the process is now loaded against the
landowner. My experience is that putting in a town or village green
application is an extremely difficult and complex process. My hon.
Friend the Minister alluded to some of the components of
that. The idea of not
being allowed to submit an application within five years of an
unsuccessful application should be fiercely resisted. As was recently
alluded to, because this is a complex process that is undertaken by
what are essentially volunteers from within the community, it is quite
possible that they will get it wrong. Indeed, I suspect that some of
the applications submitted in order to thwart planning applications
might not be fully considered—might not be submitted in the most
cogent way possible—and that they may fail because of
that. We obviously
have a problem with Trap Grounds. Some applications have probably
failed. I do not know what records have been kept throughout the
country on how many applications have been heard and automatically
rejected because of Trap Grounds. I know that many local authorities,
including Leeds city council in my area, have tried to defer
consideration of these applications. The application in respect of
Yeadon Banks in my constituency was submitted in July 2004; clearly,
some time has elapsed since then, because of Trap
Grounds. I agree with
the comments of my hon. Friendthe Member for Stroud about the
deletion of subsection (6). I support him in pressing the Minister for
clarification on that. We do not want a situation to arise whereby some
of the
applications—
Jim
Knight: If it will help my hon. Friend, let me say that
the provisions of subsection (6) are simply re-enacted by subsections
“(3) or (3A)” as referred to in one of my amendments.
They are all still included. This is just a case of what I referred to
in my opening remarks as reordering everything to make better sense. I
hope that the fact that those provisions are all still included
reassures my hon. Friend, and helps to move the debate
forward.
Mr.
Truswell: I am grateful for those comments.
Further to amendment No. 42 and
the suggestion that the existence of a substantive planning permission
should be an obstacle to the further progress of a town green
application, I suggest that the two processes are entirely separate.
Again, I can cite my own parochial example; the planning process has
not been particularly helpful in protecting an area of land that has
been in public use for generations and, certainly on a prima facie
basis, meets all the tests that in due
course it will have to satisfy, when and if the local authority gets
round to determining things, in the context either of the Bill or of
the decision on Trap
Grounds. 12.30
pm The idea that
we are dealing with landowners with limited resources is not the point
that we should examine. We should defend the town green process and, if
anything, make it far easier. As my hon. Friend the Member for Stroud
indicated, the application in my constituency has been a lengthy
process. Advice has had to be sought and people have had to mull over
complex and arcane legal commentaries. There has been a need to raise
awareness within the local community, organise public meetings and
establish a committee to carry out the application process. People have
gone round to try to get sufficient statements of evidence to
demonstrate that the town green application meets the
requirements. That
process is one of the reasons why I hope that the Committee will resist
amendment No. 45. In my experience, reducing the period available to
undertake such a convoluted process would be an obstacle to some
communities. As my hon. Friend said, we are talking about volunteers in
the community who have other
lives. I would
caricature the application process as being a little like getting a
complex piece of do-it-yourself furniture and having to piece it
together in some sort of treasure hunt, only to discover that some
essential pieces are missing. I counsel Members who are persuaded or
influenced by comments made from the Opposition Front Bench and by my
hon. Friend the Member for High Peak not to throw the baby out with the
bathwater and make the process more restrictive.
My experience shows that the
vast majority of people do not know what a town green is. I am sure
that many communities have town or village greens but do not realise
that they might be able to achieve that legislative and formal status
until a planning application or unitary development plan demonstrates
that the land is not as sacrosanct as they had
hoped.
Paddy
Tipping: This has been an important debate with historical
relevance in this place. There has always been an argument between
those who believe in the rights of the private owner and those who
favour the wider, informal rights of the public good. If one were to
look at the records of Parliament, one would see that that has been
debated strongly many times.
The hon. Member for South-East
Cambridgeshire, with whom I agree on many issues, made
thecase, supported by the hon. Member for
Ludlow(Mr. Dunne), for the primacy of the right of private
ownership. However, the world has changed. The importance of the wider
public good and the right of public participation has increased, and
that trend will continue. My hon. Friend the Member for High Peak
talked about the Kinder Scout trespass, and one of this
Government’s monumental achievements has been the Countryside
and Rights of Way Act 2000, creating the right of wider access to wild
and open spaces. My hon. Friend the Minister and his officials have
worked hard to balance that wider public right against that of
private ownership. He listened to the debate in the other place and has
tabled amendments that recognise some of the concerns expressed by the
hon. Member for South-East
Cambridgeshire. Some
of us feel that the powers of the Bill do not go far enough in looking
after the public good and the right of wider informal use of land. The
Minister and his officials have listened to the debate and tried to
find a balance, and I urge him not to go any further. Having watched
the progress of the Bill, I have seen movement towards the rights of
private ownership. I counsel him to maintain his present position and
not to give further ground, because informal areas that have acquired a
tradition of usage over many years are important for the community at
large and should not be given away in the manner that is being asked
today. The balance is right and we should stick with it,
because—in the old phrase—this land is
ours.
Jim
Knight: Those Members who were on the Standing Committee
of the Natural Environment and Rural Communities Bill will remember
that I always took seriously the words of counsel from my hon. Friend
the Member for Sherwood, and I see no reason to deviate from that
course now. The debate has been useful and I shall try to address the
points that have been made as best I can. If I fail in one or two cases
I shall write to Members
accordingly. The hon.
Member for South-East Cambridgeshire raised a question about the
five-year grace period from commencement for cases in which access to a
green was ceased prior to commencement. My hon. Friend the Member for
Pudsey made a strong and passionate case for a sensible grace period.
The five-year period applies when use as of right has ceased, and I
think that five years is appropriate to allow a
catch-up. The hon.
Member for South-East Cambridgeshire also talked about development and
made some interesting points about larger developments and about
community developments that may be happening, which may be frustrated
by the April date of a week ago. I shall reflect on what he says, but I
ask him also to reflect on the fact that clause 15 re-enacts, with some
modifications, the existing regime for registering land that has had 20
years’ recreational use as of right by local people. It reflects
the customary law position in which any free-standing period of that
kind gave rise to a presumption that land was a green, even if it had
occurred many years earlier. The element of risk that the developer
undertakes, therefore, has in many respects not changed and will not do
so by virtue of the amendment. If the development of a community centre
that is wanted by the whole community is affected then obviously there
is capacity for exchange in order to allow that, although it may not be
entirely to the satisfaction of the hon.
Gentleman. On
amendment No. 42, determination of a planning application turns
essentially on policy considerations. A committee of local politicians
decides, in light of national and local guidelines, whether to allow a
development to proceed, and it is well established that any consent
that it gives is without prejudice to other constraints that may affect
the use of the same land, such as the existence of prior rights over
the land that
may make the development unlawful. I recognise, of course, that some
particularly difficult and emotive situations can arise locally in
cases when, after the giving of planning consent, there is an
application to register the same land as a green—my hon. Friend
the Member for High Peak has explained
that. Ultimately,
determination of an application to register land as a town or village
green is a legal, rather than a policy matter. The sole issue is
whether the qualifying recreational use by local people has occurred.
The tests are tough, but if the local inhabitants can meet them, they
prove that the land is a green and should be registered as such. It
would be wholly inappropriate for the Bill to treat a planning consent
as overriding the scope for such
registrations. On the
second point in the amendment, the Government do not agree that
registration should not be possible if an application to register the
land was refused in the five years before the commencement of clause
15. As Committee members know, the Court of Appeal decision in the Trap
Grounds case that we have discussed has for some time effectively
prevented registration of greens, even in the most deserving cases
where it was clear that the qualifying use had taken place before
application. I have no accurate figures of the numbers that have been
affected, for which my hon. Friend the Member for Pudsey asked,
although I have various other figures. I will not delay the Committee
by running through the information that I have if it is not exactly
what my hon. Friend
wants. It would be
wrong for the Bill to treat determination in such circumstances as a
definitive indication of the status of the land. On the other hand, if
an application was without any substance when determined before, as
perhaps might be the case in High Peak, it would remain without any
substance if remade under clause 15. Indeed, depending on the
circumstances, it might not even be possible for the authority to
entertain it again if nothing has changed and the application remains
as hopeless as ever. I will want to reflect on the guidance, as my hon.
Friend the Member for High Peak said. It is true that case law has been
evolving rapidly in recent years; we hope that the outcome in the Trap
Grounds case and the passage of the Bill will make the criteria clearer
for all. The Open
Spaces Society has issued comprehensive guidance on the subject,
entitled “Getting Greens Registered”. We will need to
speak to the society and others about how updated guidance on these
matters should best be provided. If my hon. Friend wants to write to me
I shall be happy to discuss his ideas and the problems in his
constituency, given his generally progressive attitude to town and
village
greens.
Tom
Levitt: I am grateful to my hon. Friend. One of the
problems of the guidance versus case law issue is that case law takes
so long. The delay in waiting for case law to be decided means that the
town green applications cannot be processed with the speed that anyone
would want without the need for rushing. Does the Minister think that
the net effect of the Bill—a swing towards guidance rather than
case law—would reduce the present unnecessary waste of time
between the application and the decision in some
cases?
Jim
Knight: I certainly hope that developing the expertise of
commons registration officers and
authorities will make things easier. The Bill is a tidying-up process
that largely repeats the 1965 Act. If I can further streamline things
through guidance I will do so and perhaps we can discuss
it. In respect of
amendments Nos. 46 and 47, the first proposed requirement of notifying
the owner is a matter for regulations under clause 24, which we will
develop and consult on in due course. The current regulations require
the authority to notify the owner where known, to advertise the
application and to place a notice on the land. We would expect the new
regulations to contain something
comparable. The second
and third proposed requirements—to consider whether the owner
has taken reasonable steps to prevent qualifying use by local
inhabitants and to consider whether the owner can show that users were
informed throughout the relevant period that consent to such use was
temporary and not intended to lead to permanent rights—are
simply elements of what, by definition, the authority must do when it
is considering whether the use as of right by local inhabitants has
occurred for at least 20 years. Use as of right is without permission
or secrecy. If the owner can show that he prevented the use or that he
informed users throughout that their use was permissive, the
application must fail.
On the basis that the
amendments are unnecessary, I ask the hon. Member for South-East
Cambridgeshire to ask leave to withdraw
them. The hon. Member
for Ludlow asked a couple of questions to which I shall respond. In
respect of section 31 of the Highways Act 1980, we concluded that it
was unnecessary, and would not always be appropriate, to introduce the
possibility for a landowner to declare that recreational use of his
land is not as of right. A landowner who wants to continue to allow
local people to use the land simply needs to communicate his permission
clearly to them—for example, by putting prominent notices on the
land which he maintains or periodically renews. The difficulty with
substituting a paper procedure is that people may be unaware that their
use of the land as of right is challenged. That is unsatisfactory when
20 years’ use as of right has already taken place and it is
important for any challenge to as-of-right use to be overt so that
people recognise it as such and, if appropriate, take action to secure
registration of the land before the two-year period of grace
elapses.
12.45
pm For that
reason, clause 15 does not treat the mere giving of permission as
enough to end as-of-right use. It would be unfair if an apparently
welcoming action taken after a long period of as-of-right use were able
to cancel out long-established as-of-right use in that way and thereby
prevent registration of the land.
Incidentally, although I cannot
comment on specific cases, I do not believe that a provision similar to
section 31(6) of the Highways Act 1980 would be of any assistance when
20 years’ use had already accumulated because that section can
be used to prevent the presumed dedication of rights of way only when
20 years’ use has not already taken
place. I shall write
to the hon. Member for Ludlow about the Glebe land that he referred
to.
In respect of applications to
register land as a green infringing the owner’s human rights, we
do not accept that that is so, but the Judicial Committee of the other
place is considering that issue in the Trap Grounds
case.
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