Commons Bill [HL]

I shall continue for the moment; my noble friend will, I hope, be satisfied if he will wait for a minute or two. Applications to register greens face substantial problems because of an unfavourable ruling, as the noble Baroness said, by the Court of Appeal in the Trap Grounds case in Oxfordshire. The appeal is due to be heard by your Lordships’ Judicial Committee in late March or early April next year. One aspect of the Court of Appeal’s ruling is that the owner of land can take action after an application is made to register it as a green but before it is registered, to prevent it achieving registration. That is not acceptable, because it effectively makes new registration of genuine greens impossible. As we cannot know what will be the outcome of the Trap Grounds appeal in the House, the wording of Clause 14 differs from that in the 1965 Act and addresses that difficulty. That is the context for the amendments. The noble Baroness, Lady Byford, has tabled a number of what I take to be probing amendments, and I shall do my best to answer them. I shall deal first with Amendments Nos. 47 and 52. In line with the current definition of town or village green in the 1965 Act, Clause 14 requires that, before registration as a green can take place, a ““significant”” number of the inhabitants of the locality or neighbourhood in question must have used the land in a qualifying way. The term ““significant number”” is construed in relation to the size of the locality or neighbourhood. The inhabitants are the people who live in a locality or neighbourhood, whether it is their first, second or even third home. ““Indulged”” is indeed an odd word, but it is taken from the 1965 Act definition of farm or village green. I refer my noble friend Lord Williams of Elvel to Section 22 of that Act. Amendments Nos. 47 and 52 would require the ““majority””—not just a significant number—of the inhabitants of the locality or neighbourhood to have indulged in lawful sports and pastimes on land as of right for at least 20 years in order to justify its registration as a town or village green. Making registration dependent on a majority of the inhabitants having used the land in a qualifying way would be unduly restrictive and would set a burden of proof that would be impossible to satisfy in practice. The effect of Amendments Nos. 49 and 54 would be that, if a landowner had been considerate enough to give local inhabitants express permission to use his land for lawful sports and pastimes and that arrangement had been in place for at least 20 years, that in itself would justify registration as a town or village green. I fear that for us to accept those amendments—I accept that they are probing—would be to incur the wrath of the landowning community. Clearly, it would not be reasonable for purely permissive use to give rise to registration of land as a green in that way. Conversely, it would be equally unreasonable that the amendment would prevent registration of land as a green on the basis of 20 years’ qualifying use as of right—that is, without permission, without force and without secrecy. It is use of that kind, not permissive use, that should give rise to registration. Amendment No. 51 would emphasise, by inserting the word ““continuous”” in subsection (2), that the period of at least 20 years over which local inhabitants must have indulged in lawful sports and pastimes on land as of right to justify its registration as a town or village green is to be a continuous period. We resist the use of the word ““continuous”” simply because subsection (2) (b) already provides that the exercise of lawful sports and pastimes must continue up to the date of application. The Committee will note that Clause 14(3) (b) goes on to provide that regulations may give effect to what one might call a period of grace after use of right has ceased within which application to register may be made. We shall come to that issue on a later amendment. So Amendment No. 51 is unnecessary. There is no disagreement about the policy or the legal effect that we all seek from this subsection. Amendment No. 59 would omit subsection (4) of the clause, which enables regulations to limit the ways in which the owner of land may cause local inhabitants’ use of it for lawful sports and pastimes to cease to be ““as of right””. We resist the omission of subsection (4) because regulations made under it will provide greater clarity for landowners and for recreational users of their land than exists at present. Where local inhabitants have been using land as of right for lawful sports and pastimes for a period of time but not as yet for 20 years, the owner will be able to take the action prescribed under the regulations and thereby expressly prevent any further use that takes place being ““as of right””. That will ensure that such land cannot be registered as a green. It is important for landowners to have the confidence that there are specific forms of action that they can take and that will have effect.