Growth and Infrastructure Bill

Baroness Hanham Excerpts

Wednesday 30th January 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, as the noble Lord, Lord Cameron, has just said, the stand part debates have suddenly morphed into this other group, which was not small initially and is now even larger.

I wish to make a few brief comments on the clause stand part debate because it is important to put what we are talking about into context. The process to register land as a town or village green can cut across decisions taken in the democratically accountable planning system. Applications to register land as a green can, and have, delayed or prevented development. We have heard, for example, about the implications of this for the affordable homes needed in our communities. Clause 14 addresses these concerns by aligning the process for registering greens with the planning system. Without this clause and the linked Schedule 4, the greens registration system will remain at odds with planning. This would mean that applications to register land as a green could continue to be made on land where planning permission has been granted or which has been identified for development in an adopted local plan or neighbourhood plan. Additionally, applications to register land as a green could cut across consultation with the local community on draft local and neighbourhood plans and planning applications, including those seeking consent for nationally significant infrastructure projects.

At Second Reading there was considerable support for these reforms. Indeed, we were urged to look at more radical changes. The noble Lord, Lord Greaves, considered the problem in relation to planning to be small-scale and said that Clause 14 was an overreaction. He has reiterated that today. However, this clause has been widely supported, including by the Local Government Association, whose member councils bear the responsibilities for planning and determining applications for town and village greens. The association said that these reforms are essential to align the greens registration system with the planning system. The noble Lord, Lord Greaves, mentioned Adrian Penfold, who also gave evidence to the Commons Select Committee. He said modestly that what is in the Bill is a better way of dealing with the problem than he himself came up with in the review of non-planning consents that the previous Government commissioned him to lead.

The proposed reforms do not drive a coach and horses through the ability of communities to protect open land which is important to them; rather, the changes are a proportionate response to a serious problem. They strike the right balance and put decisions on the future of land where they should be taken—in the planning system, which provides an opportunity for everyone to have their say and for all relevant considerations to be taken into account.

I shall deal with the amendments as briefly as I can but there are an awful lot of them. In order to align the registration of town and village greens with the planning system, Clause 14 and Schedule 4 to this Bill insert into the Commons Act 2006 a new Section 15C and corresponding Schedule 1A. The new legislation will not affect existing registered greens, which will continue to enjoy the same strong protection as they currently have. Nor is it our intention that the changes will affect applications to register land as a town or village green where there is no proposed development on the land in question. Equally importantly, the reforms have been carefully drafted to ensure that where an application to carry out development has been considered and rejected, and any appeal rights have run their course, an application to register the land as a green can be considered in the normal way. Each of Amendments 64 to 70C would significantly weaken the proposed reforms to align the village green legislation with the planning system. The combined effect would negate most of what these reforms are intended to achieve. I will explain the damaging consequences of each amendment in turn.

Amendments 70, 70A, 70B and 70C concern Schedule 4, and I shall deal with them first. Amendment 70 would remove the trigger events in Schedule 4 that exclude greens applications when a planning application, or a draft local or neighbourhood plan, is formally publicised for consultation. Instead, the only trigger events would be later in the planning process, when a decision had been taken to grant planning permission, to adopt a local plan or to make a neighbourhood plan that identified land for potential development.

Amendment 70A would have the same effect as Amendment 70 in relation to local plans because it would mean that applications to register land as a town or village green could be made when a draft local plan was being consulted on. We have the same concern about Amendment 70B, whereby a town or village green application could be made where a draft neighbourhood plan was published for consultation. Amendment 70C would have a similar effect to Amendment 70, by removing the protection from town or village green applications that we intend to give to major infrastructure projects between the time when a proposed infrastructure application is publicised and, if that application is accepted by the Secretary of State, an application is publicised again. The trigger events proposed in the Bill were carefully chosen to occur when formal publicity and consultation is undertaken in relation to both planning applications and draft plans. This is the right approach because it will protect both decision-making by democratically accountable local authorities and the ability of communities to engage in meaningful consultation on whether land should be developed or kept open.

Amendment 70 would mean that a town or village green application could be made at any time up to when a decision is made on a planning application, an application under the nationally significant infrastructure regime or a draft plan. Amendments 70A, 70B and 70C would have a similar effect. This would cast into real doubt whether a development proposal could be delivered, and would cause significant delays to development proceeding, if that was the eventual decision taken in the planning process. These amendments cut across meaningful consultation in planning. They would mean that an application to register land as a green could be used to undermine a local community’s ability to engage on whether an area should be developed or kept open, taking account of the need for new homes, work places and infrastructure, as well as concerns such as ensuring sufficient recreation space.

It is absolutely right that people should be able to argue their case that a site should be protected as open space. They can look for support to the National Planning Policy Framework, which gives strong protection for open spaces. The framework also includes the new “local green space” designation, which communities, through local and neighbourhood plans, will be able to use to identify for special protection green areas of particular importance. The appropriate way for people to engage in planning is to use the opportunity that consultation affords, while respecting that others in the community may disagree just as passionately and wish to present different evidence about what decisions on the future use of land would be in the overall public interest. It is our intention, when the outcome of the planning process is a decision not to develop land, that the reforms will not then prevent people applying to register the land as a green.

Amendment 64 would mean that applications could be made to register land as a green up to six months after a trigger event has occurred. The effect would be that even when there was a planning permission, you would have to wait another six months before you could be sure that the development would not be delayed further or even stopped altogether by an application to register land as a green. Equally, where land is identified for potential development in a plan, the community would be penalised by a further six months of uncertainty, despite the fact that the proposals had been through a process of independent examination. In both cases, proposals would have been subject to consultation and careful consideration, but the final determination could be undermined by a registration application. The amendment would be unfair to everyone who benefits from development and would produce an unnecessary threat hanging over delivery of the homes and economic growth that is so urgently needed.

Amendment 64A relates to trigger events in the schedule concerning applications for planning permission or development consent, and would mean that an application for a town or village green could be made at any time up to eight weeks after a planning application or an application for development consent had been made. This would cut across consultation in the same way as Amendment 70 and, for the reasons I have explained, we consider that Amendment 64A is equally flawed.

Amendment 66A would require the Secretary of State to consult on any occasion when he made an order to change the particular circumstances in which a town or village green application could go ahead when it would otherwise have been prevented because a trigger event had occurred. The Government recognise the importance of consultation. Equally, however, it is important to avoid unnecessary bureaucracy. This amendment would mean that the Government would have to consult, however small the change. Consultation is not free and it may not be necessary. We believe that future Secretaries of State should have discretion to decide when it is appropriate to consult and not have their hand forced, with the potential waste of resources that would ensue.

Amendments 65 to 68 would, together, remove new Section 15C(3) to (5) and 15C(7), which provide for secondary legislation enabling the Secretary of State to amend or refine the provisions relating to town and village greens. Instead, any changes that may be needed, however minor and uncontroversial, would have to be introduced through primary legislation.

The order-making powers are important for several reasons. The aim of new Section 15C(3) is simply to give a power to specify the point at which an event had occurred if in practice there was thought to be ambiguity —for example, arising from any future legislative change. Amendment 65 would prevent such uncontroversial and necessary changes.

New Section 15C(4) gives a power to disapply the exclusion of green applications in relation to a specified trigger event, if necessary in the light of circumstances on the ground. Amendment 66 would prevent this.

Amendments 67 and 68 would remove the power contained in new Section 15C(5) and (7) to add to, remove or amend by order any of the trigger or terminating events. However, Clause 14 and Schedule 4 were constructed to encompass only the main planning processes that were included in our 2011 consultation on the reforms to the green registration system. Additionally, we have sought to include in the Bill only the main terminating events. Evidence submitted in the Commons pointed to the need for additional terminating events to ensure that all outcomes in plan-making are covered and that we avoid the situation where the exclusion on green applications fails to lift even where there is no longer an active development proposal. That would be contrary to our policy and I do not believe that it would be something that my noble friend Lord Greaves would want.

With the background that I have just set out, I wish to advise noble Lords of the Government’s intention, if the Bill is enacted, to consult on setting additional trigger and terminating events in relation to development brought forward through other planning procedures—namely, in relation to local development orders, neighbourhood development orders and Transport and Works Act orders. The consultation will also propose additional terminating events to deal with situations which are unlikely to be common but which may arise in local and neighbourhood plan-making, such as where a local plan is found to be unsound but is not withdrawn.

In saying that, I wish to reassure noble Lords that the Government will respond positively to the recommendation of the Delegated Powers and Regulatory Reform Committee that new Section 15C(5) should be subject to the affirmative procedure. An amendment will be brought forward on Report to secure this. Consequently, Parliament will have the opportunity to scrutinise any draft order brought forward in the light of the public consultation.

Amendment 69 would mean that trigger events that occurred before commencement would not have the effect of excluding applications to register land as a green. Consequently, applications could be made on any land on which planning permission had already been granted, even where development had started. Similarly, land identified for development in all existing local plans and those to be adopted in the months before commencement would be vulnerable. Applications to register land as a green in such circumstances would be unfair on all who had invested time and expense in making and responding to planning applications and engaging in plan-making. As with other amendments to this clause, Amendment 69 would hold a threat of delay or derailment over all planned and urgently needed development and growth throughout the country, and that cannot be reasonable or right.

Finally, Amendment 69A would limit the provisions of Clause 14 and Schedule 4 to areas where there is an adopted local plan or neighbourhood development plan. Outside these areas, this amendment would mean applications to register land as a town or village green could be made where a draft local or neighbourhood plan was being consulted on, or where a planning application was being considered. This would mean that in these situations the decision about the future use of land would not be taken through the plan-making process but could instead be decided via the back of an application to register land as a green. For the reasons that I have set out, this would severely undermine the reforms.

We are now seeing good progress made in local plan-making and an encouraging take-up of neighbourhood planning. But not everywhere has an adopted local plan and nowhere yet has a neighbourhood plan. Why in such areas should people engaging in shaping plans have the threat hanging over them that their efforts could be completely undone? For the reasons I have explained, I ask the noble Lord to withdraw the amendment.

--- 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.