English Devolution and Community Empowerment Bill

Lord Banner Excerpts

Report stage
Monday 13th April 2026 Lords Chamber

Moved by

[Lord Banner]

248: After Clause 63, insert the following new Clause—
“ChapterLand disposed of by local councilsDischarge of statutory trusts
Secretary of State to have power to discharge statutory trusts(1) LGA 1972 is amended in accordance with this section.(2) After section 128 (consents to land transactions by local authorities and protection of purchasers) insert—“Discharge of statutory trusts
128A Statutory trust discharge orders(1) The Secretary of State may make an order under this section in relation to land in England (a “statutory trust discharge order”). (2) The Secretary of State may not make a statutory trust discharge order in relation to land unless—(a) a person has applied to the Secretary of State for the statutory trust discharge order to be made in relation to the land, and(b) the Secretary of State is satisfied that the qualifying conditions are met (see section 128D).(3) The effect of an order being made in relation to land is that the land is freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with—(a) section 164 of the Public Health Act 1875 (pleasure grounds), or(b) section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds).(4) The order has that effect in relation to that land generally (and so its effect is not limited to that land as freehold or leasehold land as held by the applicant for the order).(5) The Secretary of State may, by regulations, make provision as to the making and determination of any application for a statutory trust discharge order.(6) Regulations under subsection (5) may in particular make provision as to—(a) the steps to be taken by a person before making an application;(b) the form of an application;(c) the information or evidence to be supplied with an application;(d) the publication of an application;(e) the holding of an inquiry before determination of an application;(f) the evidence to be taken into account in making a determination and the weight to be given to any evidence.(7) Regulations under subsection (5) may include provision for the Secretary of State to appoint a person to discharge any or all of the Secretary of State’s functions in relation to an application for a statutory trust discharge order.(8) The power under subsection (5) to make regulations includes power to make—(a) different provision for different cases;(b) incidental, supplementary or consequential provision;(c) transitional or saving provision.(9) A statutory instrument containing regulations under subsection (5) is subject to annulment in pursuance of a resolution of either House of Parliament.(10) Section 128G contains further provision about the making of statutory trust discharge orders.128B Applications for statutory trust discharge orders(1) A person making an application must have regard to any guidance issued by the Secretary of State (whether relating to how the application is made or to its form or content).(2) Qualifying condition B (see section 128D(3)) limits which kind of person is able to make a successful application.(3) An application may be varied after it has been made (and section 128A, this section, and sections 128D to 128G then apply to the application as varied). (4) The Secretary of State may require a person making an application to pay a fee before the Secretary of State considers the application (the “application fee”).(5) The application fee is to be of an amount specified in, or determined in accordance with, regulations made under section 128A(5).(6) The determination of an application for a statutory trust discharge order which relates to particular land does not prevent a further application from being made subsequently in relation to the same land.(7) But the Secretary of State may reject a further application if the Secretary of State considers that there has not been a material change in the circumstances relevant to the qualifying conditions.(8) If a further application is rejected, the Secretary of State must publish notice of the rejection in the manner which the Secretary of State considers appropriate.128C Applications where land has been divided up(1) This section applies where—(a) a principal council, parish council or parish meeting appropriated or disposed of land, and(b) the freehold or leasehold title to that land has subsequently been divided.(2) An application may be made in relation to the land comprised in any of the relevant titles.(3) A single joint application may be made in relation to the land comprised in two or more of the relevant titles, and, in the case of such an application, the question of whether the qualifying conditions are met must be decided separately in relation to the land comprised in each title.(4) For the purposes of this section—(a) a freehold title is “divided” if either or both of the following occurs—(i) the title is divided into two or more different freehold titles;(ii) a lease (including a sublease) is granted over some or all of the land comprised in the freehold title;(b) a leasehold title is “divided” if—(i) the title is divided into two or more different leasehold titles (for example by an assignment of part);(ii) a sublease (including a sublease that is not immediately inferior to the leasehold title) is granted over some or all of the land comprised in the leasehold title.(5) In this section “relevant title” means—(a) the freehold title to the whole or a part of the land appropriated or disposed of;(b) the title to a long lease of the whole or a part of the land appropriated or disposed of.128D The qualifying conditions(1) This section sets out the “qualifying conditions” (referred to in section 128A(2)(b)).(2) Qualifying condition A: the application for the statutory trust discharge order identifies land in England in relation to which the order is being sought.(3) Qualifying condition B: the applicant for the order is—(a) the freehold owner of the relevant land, or(b) the tenant of the relevant land under a long lease, whether granted before or after commencement,at the time of the application (whether or not by virtue of the previous appropriation or disposal). (4) Qualifying condition C: a principal council, parish council or parish meeting—(a) appropriated, or(b) disposed of,the relevant land at a time before the application for the statutory trust discharge order is made (the “previous appropriation or disposal”).(5) It does not matter whether the previous appropriation or disposal occurred before or after commencement.(6) Qualifying condition D: the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal.(7) For the purposes of determining whether qualifying condition D is met—(a) it is sufficient that the previous advertisement procedure was not complied with;(b) accordingly, it is irrelevant—(i) whether the previous advertisement procedure in fact had to be complied with, or(ii) whether the land was in fact land held in trust for enjoyment by the public in accordance with a trust of the kind mentioned in section 128A(3).(8) Section 128F includes provision for presuming that the previous advertisement procedure was not complied with; and qualifying condition D must be taken to be met if that presumption is made.(9) Qualifying condition E: the new publicity requirements have been complied with.(10) Qualifying condition F: it is in the public interest for the relevant land to be freed from the trusts by virtue of the order.(11) The reference in subsection (10) to the public interest includes the public interest in—(a) nature conservation;(b) the conservation of the landscape;(c) the protection of public rights of access to the relevant land;(d) the protection of archaeological remains and features of historic interest;(e) development proposals relating to the relevant land;(f) economic, environmental or social benefits which the order would facilitate if made.128E The new publicity requirements(1) This section sets out the “new publicity requirements” (referred to in qualifying condition E in section 128D(9)).(2) The applicant must publish a notice of the application in four consecutive weeks—(a) in a local newspaper, and, if there are two or more local newspapers, it must be the main local newspaper;(b) if there is no local newspaper, either—(i) in a national newspaper, or(ii) on a website with a readership in the local area that is comparable to the readership of a local newspaper.(3) If—(a) a newspaper is published in print and on a website, and(b) it is possible to publish notices of the kind required by subsection (2) in both versions,a requirement under subsection (2) to publish a notice in the newspaper can only be complied with by publication of the notice in both versions. (4) If the applicant is a principal council, a parish council or parish trustees, they must also publish a notice of the application for a period of 28 days on their website (if they have one).(5) The applicant must display a notice of the application for a period of 28 days at the point of entry, or at the main points of entry, to the relevant land.(6) The Secretary of State must publish a notice of the application for a period of 28 days on the website, or main website, containing information about the Secretary of State’s department.(7) A notice under this section must identify the relevant land.(8) A notice under this section must—(a) state that a person who wishes to make representations about whether or not the order should be made may notify the Secretary of State of the representations, and(b) state the manner in which, and date by which, representations must be notified; and that date must be later than the last day of the period of 56 days beginning with the day when that notice is first published or displayed.(9) When publishing or displaying a notice under this section, the applicant must have regard to any guidance issued by the Secretary of State (whether relating to its publication or display or its form or content).(10) In this section—“local area” means area in which the relevant land is situated;“local newspaper” means a newspaper circulating in the local area.128F Previous advertisement procedure: co-operation by councils etc and presumption(1) This section applies if an application has been made to the Secretary of State for a statutory trust discharge order.(2) The Secretary of State must notify the relevant council or parish trustees of—(a) the application,(b) the relevant land, and(c) the information about the previous appropriation or disposal which the Secretary of State has as a result of the application.(3) Within the response period, the relevant council or parish trustees must give the Secretary of State—(a) notice which—(i) confirms that the previous advertisement procedure was complied with in relation to the previous appropriation or disposal,(ii) confirms that the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal, or(iii) states that the relevant council or parish trustees are not able to confirm either of those things, and(b) any information relating to compliance, or non-compliance, with the previous advertisement procedure which the relevant council or parish trustees have.(4) If the relevant council or parish trustees—(a) give the Secretary of State a notice under subsection (3)(a)(iii) within the response period, or(b) do not give the Secretary of State any notice under subsection (3)(a) within the response period, the Secretary of State must presume that the previous advertisement procedure was not complied with in relation to the previous appropriation or disposal, unless the Secretary of State is satisfied that the procedure was complied with.(5) In this section— “relevant council or parish trustees” means—(a) in a case where a principal council undertook the previous appropriation or disposal, the principal council for the area where the relevant land is situated;(b) in a case where a parish council undertook the previous appropriation or disposal—(i) the parish council or parish trustees for the area where the relevant land is situated, or(ii) if the relevant land is no longer in the area of a parish, the principal council for the area where the relevant land is situated;(c) in a case where a parish meeting undertook the previous appropriation or disposal—(i) the parish trustees or parish council for the area where the relevant land is situated, or(ii) if the relevant land is no longer in the area of a parish, the principal council for the area where the relevant land is situated;“response period” , in relation to a notification given by the Secretary of State under subsection (2), means the period of 28 days beginning with the day on which the notice is received by the relevant council or parish trustees.128G Making statutory trust discharge orders(1) In deciding whether to make a statutory trust discharge order, the Secretary of State must take into account all matters that are relevant, including these matters—(a) whether, and how, the person making the application has had regard to the guidance issued by the Secretary of State under section 128B(1) and section 128E(9);(b) any representations about whether or not the order should be made that are notified to the Secretary of State (including any representations made by persons who are freehold owners, or tenants, of land comprised in the previous appropriation or disposal but who are not applying for the order).(2) A statutory trust discharge order may relate to only some of the relevant land specified in the application.(3) A statutory trust discharge order takes effect—(a) on the day after the day on which the order is made, or(b) if the order specifies a later day on which it is to take effect, on that day.(4) In relation to each application for a statutory trust discharge order, the Secretary of State—(a) must publish notice of the decision whether or not to make the order, and(b) if the order is made, must publish the order.(5) That notice, or the order, is to be published in the manner which the Secretary of State considers appropriate.128H Sections 128A to 128G: interpretation and application to the Crown(1) In sections 128A to 128G and this section—“application” means an application for a statutory trust discharge order;“commencement” means the coming into force of section (Secretary of State to have power to discharge statutory trusts) of the English Devolution and Community Empowerment Act 2025; “long lease” means a lease which was granted for a term of 20 years or longer;“new publicity requirements” has the meaning given in section 128E(1);“previous advertisement procedure” means whichever of the following applied to the previous appropriation or disposal—(a) the requirement to advertise notice of the intention to make the appropriation in accordance with—(i) section 122(2A) in the case of an appropriation by a principal council;(ii) section 126(4A) in the case of an appropriation by a parish council or parish meeting;(b) the requirement to advertise notice of the intention to make the disposal in accordance with—(i) section 123(2A) in the case of a disposal by a principal council;(ii) section 123(2A) as applied by section 127(2) in the case of a disposal by a parish council or parish meeting;“previous appropriation or disposal” has the meaning given in section 128D(4);“qualifying conditions” has the meaning given in section 128D(1);“relevant land” means the land identified in the application for a statutory trust discharge order as the land relation to which the order is being sought;“statutory trust discharge order” has the meaning given in section 128A(1).(2) A reference in sections 128A to 128G to the freehold owner, or the tenant under a long lease, is a reference to—(a) the Crown Estate Commissioners, if the freehold or long lease belongs to His Majesty in right of the Crown and forms part of the Crown Estate;(b) the government department having the management of the freehold or long lease, if it belongs to His Majesty in right of the Crown but does not form part of the Crown estate;(c) the government department concerned, if the freehold or long lease belongs to a government department or is held in trust for His Majesty for the purposes of a government department;(d) a person appointed by His Majesty in writing under the Royal Sign Manual, or if no such appointment is made the Secretary of State, if the freehold or long lease belongs to His Majesty in right of His private estates (which must be construed in accordance with section 1 of the Crown Private Estates Act 1862);(e) the Chancellor of the Duchy of Lancaster, if the freehold or long lease belongs to His Majesty in right of the Duchy of Lancaster;(f) a person appointed by the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, if the freehold or long lease belongs to the Duchy of Cornwall.”(3) In section 266(1) (orders which are to be made by statutory instrument), for “other than section 261 above” substitute “other than section 128A(1)”.”Member's explanatory statement
This amendment seeks to enable the Secretary of State to make an order in relation to land previously appropriated or disposed of by a council. The order would discharge the land from statutory trusts relating to open land that arise under section 164 of the Public Health Act 1875 or section 10 of the Open Spaces Act 1906.

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[Lord Banner (Con)]

My Lords, Amendment 248 is in my name and in the names of the noble Lords, Lord Grabiner and Lord Pannick. Veterans of the early debates on this Bill and on the Planning and Infrastructure Bill last year will be more than familiar with the problem that this amendment seeks to address, but given the prospect of Divisions later and in light of the considerable misapprehensions that have been disseminated by opponents of the amendment, I need briefly to outline what it involves.

Open spaces held by a local authority under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of the public being given the right to go on to that land for the purpose of recreation. The Local Government Act 1972 provides at Section 123(2A) that the local authority may not dispose of any such land until it advertises its intention to do so in a local newspaper for two weeks and considers any objections received in response to the advertisement. Where that process has been followed, Section 123(2B) provides that the sale of the land post-advertisement then proceeds free of the statutory trust. That is the existing law and there is no controversy about that.

Where the advertising requirements have not been followed, however, the effect of the Supreme Court’s judgment in a case called Day is that the statutory trust continues to exist after the land has been transferred, no matter how long ago that was and notwithstanding the absence of any challenge to the decision to dispose of the land, even if the purchaser was in good faith and was completely oblivious to the issue. Given that the advertising cannot currently be done retrospectively, the land is then permanently blighted by the trust and cannot be repurposed, no matter how strong the public interest in doing so. This issue is causing damaging uncertainty in relation to land purchased from local authorities in good faith, sometimes decades ago, even where the advertising may actually have been done, because in some cases the sale happened so long ago that the evidence about whether the land in question was properly advertised prior to the sale may no longer be readily available. This is holding up many developments across the country that already have planning permission.

The amendment has been wrongly characterised as being only about the high-profile Wimbledon case. That is untrue. Indeed, the All England Lawn Tennis Club recently won its High Court case concerning whether a statutory trust ever existed in the first place over land on which it has planning permission to expand. So, as things currently stand, the amendment is in fact academic for that case. It is, however, of real importance more widely.

The amendment would fill the gap in the current law in relation to any procedure to remedy the situation where the former open-space land has been disposed of without advertisement, and then is permanently blighted by a statutory trust, without there being any corrective mechanism available in the law. It would do so with the necessary safeguards to ensure that, before former open-space land could be released from such a trust, there was an open process in which the public could participate.

In summary, the freehold or leasehold owner of the land in question must apply for a statutory trust discharge order. The application would then be subject to publicity requirements, including site notice and advertising in the local newspaper for four consecutive weeks—double the existing provision for advertisement—which, if complied with at the time of the sale, would mean under the current law that the trust was already extinguished. That would remedy the original failure to advertise, meaning that there was no consultation deficit.

The four-week period having been followed, there would then be a public law decision as to whether or not it was in the public interest to discharge the trust, having regard to all comments received from members of the public, and indeed from any local authority in question that may respond to the consultation. There is provision for regulations that may provide for additional procedural safeguards, including the potential for a public inquiry in some cases if that was judged to be appropriate.

The safeguards would not simply be procedural; they would also be substantive. In deciding whether the public interest test was met, the Secretary of State must have regard to the following: nature conservation, the conservation of the landscape, the protection of public rights of access to the relevant land, the protection of archaeological remains and features of historic interests, development proposals relating to relevant land, and economic, environmental or social benefits that the order would facilitate if made. Only if, having had regard to all those considerations, the Secretary of State was rationally satisfied that it would be in the public interest to discharge any statutory trust may he legally do so. These safeguards would ensure that those statutory trusts that are otiose and serve to frustrate the public interest would no longer blight the land in question following the due process while maintaining any such trusts where there are justified social, environmental or other considerations.

Importantly, the amendment would leave untouched the substantive protections provided for by statutory open-space trusts. All it would do is provide a procedural mechanism for remedying a failure to advertise the disposal of such land.

It is also important to stress that the amendment would leave untouched the planning policy protections for open space. They are set out in paragraph 104 of the National Planning Policy Statement and I outlined them in Committee. It is very difficult to get planning permission under that policy for open-space land, even if it is currently disused and even if it is in private ownership.

Other substantive protections would also be unaffected, such as the law relating to national parks, commons and greens, and public access rights. Given that the substance of this range of protections would be unaffected by the amendment, there is no need for its coming into force or its operation to await or be affected by the promised review of open-space protections.

There are various amendments to my amendments. In the interests of politeness, I am not going to comment on any of them. I beg to move.

Amendments 248A to 248C (to Amendment 248) had been withdrawn from the Marshalled List.

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Amendment 250YW (to Amendment 248) not moved.

[Lord Banner (Con)]

My Lords, I agree with and endorse the comments of the noble Lords, Lord Grabiner, Lord Pannick and Lord O’Donnell, my noble friend Lord Fuller and the Minister in their responses to the various speeches opposing Amendment 248 or advancing amendments to it. I am very conscious of the hour but I have three short points in response to the noble Baroness, Lady Pinnock, who suggested that the advertising process may not be appropriate.

First, the principle of advertising is already enshrined in the existing law, as I outlined. It is sufficient to discharge trust if done at the time. There is no basis for criticising the principle of it. Secondly, it is not retrospective—that is wrong—as the statutory trust discharge order would be prospective. Thirdly, the noble Baroness asked what the consequences are. There is one consequence, which is to serve the public interest, for that is the test posed by the amendment.

I can reassure my noble friend Lord Lucas that I shall buy every single strawberry that I consume for the rest of my life. With all that in mind and for the reasons I have already given, I wish to test the opinion of the House on Amendment 248.