Housing and Regeneration Bill

moved Amendment No. 54: 54: Clause 9, page 4, line 16, at end insert— ““( ) In the case of acquisition of a common, the provisions of the Commons Act 2006 (c. 26) shall apply to the land before, during and following the process of acquisition.”” The noble Lord said: Amendment No. 54 is grouped with Amendment No. 65, which is a useful amendment tabled by my noble friend Lady Miller, and Amendment No. 66 in my name. The amendments are about commons and village and town greens and how the legislation interacts with them—and possibly existing legislation. Amendment No. 54 is a probing amendment to find out how the Government see the HCA operating in relation to land that it acquires. As the HCA does not currently exist, I assume that ““acquire”” means all the commons and greens that it will possess in the future. If it does not, it is still a probing amendment to find out to what extent the HCA will have to abide by the provisions of the Commons Act and other legislation relating to commons, over land that it owns, including areas subject to designation orders, or whether it will be different. It does not seem that long since some of us spent time in this Room discussing the details of the Commons Bill, as it then was and, as inevitably happens on these occasions, becoming temporary experts in the subject. When it crops up again two years later, you have to remember what it was all about. The Commons Act 2006 is an important piece of legislation that sets out in great detail a series of provisions relating to common land and town and village greens, including what can be done on them, development rules and restrictions, acquisition and disposal, relevant regulations and so on. It is generally regarded as a good piece of legislation that brings common land legislation up to date. If the Housing and Communities Agency owns common land, either because it is part of a development it is acquiring land for or if it is part of an area in which it becomes greatly involved as the designated planning authority, will it be bound by the normal rules and regulations relating to common land or can it ride roughshod over them because of its special status? That is the fundamental question to which Amendment No. 54 seeks an answer. The response will let us know whether we need to take the matter further at a later stage. My second amendment is much more technical, which I think I have understood. It has been researched and put to me by the Open Spaces Society, a voluntary group of experts on commons, and I should declare an interest as an ordinary member. Clause 9(4), (5) and (6) set out the basic provisions relating to commons. Clause 9(5) refers to: "““The power under subsection (2) to acquire land compulsorily includes the power to acquire land compulsorily for giving in exchange for the land or (as the case may be) new rights mentioned in subsection (4)(a)””." It may be necessary, as part of a large development, to take part of a common or green. The amendment would make provision for exchanged land to continue to provide the amenity of that common land in the future, although it might be different land. An area of common might be taken from one place and replaced with another area elsewhere. That is a well understood procedure, and the Commons Act clearly sets out how it should be carried out. However, the advice I have received states that if this is read in conjunction with Clause 9 on the acquisition of land and with Schedule 2 1(1) on the application of the Acquisition of Land Act 1981, the result is that if open space must be acquired compulsorily, Section 19 of the 1981 Act will apply. Section 19 states that, subject to minor exceptions, the Secretary of State must be satisfied that equivalent land is provided in exchange. If it is not, it may have to be subject to the special parliamentary procedure. At the moment the Bill says that if the HCA compulsorily acquires common land, equivalent land must be provided, possibly by a CPO or other means, in order to provide replacement common land. However, if a local authority owner of an open space should be willing to dispose of the land by agreement, the safeguard is bypassed and there is no requirement under existing legislation to obtain adequate and suitable replacement land. That appears to be re-enacted in the Bill. Amendment No. 56 is therefore based on Section 229 of the Town and Country Planning Act 1990, which states in a simplified form that even if the land was acquired voluntarily and with the agreement of the previous owners—we should remember that commons are owned by people—the fact that it is a common relates to its status, not to the ownership of it. If the owners of a common voluntarily hand over or sell the land to the HCA, the replacement land must still be provided. There appears to be a loophole, and I am advised by the Open Spaces Society that there have been a number of instances where common land has been provided by agreement and it has been difficult to secure the replacement of that land somewhere else in the vicinity. That is why I have tabled the amendment. It will be interesting to hear the Government’s response. This is a very technical matter. The Minister may have the answers already, but if he does not, I would be delighted if he would write to us. It is an important matter. Obviously it will apply only to a few places on a few occasions, but we must be sure that they are dealt with properly in Bills such as this. I beg to move.