My Lords, I shall speak also to Amendments 62 and 63. This group also contains a couple of amendments in the name of the noble Lord, Lord McKenzie. I shall refer to them in passing, although I shall wait for him to speak to them.
Clauses 13, 14 and 15 take us on to a new area in the Bill: the registration of town and village greens. These clauses refer to Section 15 of the Commons Act 2006, and some of us have fond memories of the passage of that legislation through your Lordships’ House.
Clause 13 inserts new Sections 15A and 15B into the Commons Act. Section 15 refers to the registration of town and village greens which exist—or which people claim exist—but which are not yet registered. It sets out the procedure for registration and that takes place through the commons registration regulations by commons registration authorities, which are local authorities in two-tier areas—now countycouncils.
Before we can understand any of these amendments or clauses we need to understand town and village greens and their registration. They are areas of land that may or may not be registered—most of them are now registered—in the commons register, and they confer on local people the right to informal recreation on that land. They are also open spaces. That common law right was codified in the Commons Registration Act 1965 and again in the Commons Act 2006.
Clause 13 brings in a new right for a landowner to bring to an end a period in which people have had rights to take part in informal recreation on that land. A piece of land can be registered as a town or village green under certain conditions: first, if people have used it for 20 years—usually continuously, but, basically, for 20 years; and secondly, if they have used it for lawful sports and pastimes—in other words, informal recreation—as of right as opposed to by right. That sounds legalistic and obscure but “as of right” means that they have not been stopped from using it; they have not used force; they have not used it secretly, having sneaked on there at two o’clock in the morning and kicked a ball about and left before anyone saw them; and they have not had permission. All those matters are crucial. If the owner of the land gives people permission by putting a sign up saying, “Ball games allowed”, that negates the ability to register it as a green. It is an ancient right and it is closely prescribed by those requirements.
If a piece of land has been used in that way without any of those conditions applying for 20 years or more, it can be registered as a green. It is very important to understand that if that happens, it is not being created as a green; it is simply recognising the legal fact that, under the old common law and under the Commons Act, where it has been codified, it is a green. It is a matter of fact. It is quite different from planning permission, which is a matter of saying, “Given the circumstances of that land and given all the planning laws and regulations, is it a good idea for that planning permission to be given?”. For example, it is very different from a designation as a piece of new green space under the new designation in the NPPF, where it is a matter of opinion as to whether that is a good idea or not. Either it is a green or it is not a green. That is why the process of registration often seems fairly bureaucratic, legalistic and long-winded.
Within the 20-year period, an owner can simply prevent the area ever being registered as a green by stopping people or by giving permission to people, whichever he wants to do. Clause 13 brings in a new right for a landowner to bring to an end the possibility of it being registered as a green—in other words, to bring to an end the period in which lawful pastimes can take place on it—by making a statement to a commons registration authority. In future, even if it has been used for more than 20 years or since the 15th century, it cannot be registered as a green.
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However, Section 15(3) of the Commons Act says that if the use has been for longer than 20 years, and it ceases, you can still apply to register within two years after the cessation of use. That use does not cease because the landowner is doing something but just stops. If the use has stopped within the past two years, but it was used before that, you can still register it as a green. The advice from the Government, which is clearly set out in the Explanatory Notes, is that this provision in Section 15(3) of the Commons Act means that even if an owner of the land makes a statement under the new clause in this Bill to the registration authority that it is no longer being used, you still have two years in which you can register it as a green. The owner makes a statement under the new Section 15A of the Commons Act, but a person can still make an application for registration under Section 15(3) within two years.
The question in regard to this amendment—which is pretty complicated, for which I apologise, but I think the point needs explaining—is: how are people to know that such a statement has been made by the owner so that they have an opportunity to exercise their rights under Section 15(3) of the Commons Act? At the moment the Bill contains no proposals that anything should happen other than that the authority should state in the register of greens that the statement has been made. That is all it has to do. The purpose of these amendments is to set down proposals that there has to be a minimum of local publicity such as a sign on the green or information on the website or an advertisement in the local newspaper or all three, and anything else which local people feel is appropriate. That is not excessive to the landowner or to a commons registration authority.
If someone’s rights are being taken away, it is common sense that they should be told about it. The owner of the land does not have to put up a fence or a gate with a lock and a sign saying, “Keep out”. He can simply allow people to continue using it for the next two years in blissful ignorance that their rights will cease after the end of two years, or their ability to use that land for that purpose will cease after two years and they will be locked out without any redress whatever. This is a simple, reasonable amendment to say that when a landowner makes a statement that the use of the green for informal recreation has ceased, there should be sufficient publicity to allow people time, if they wish, to make an application for a green registration, which can then be tested in the normal way. I beg to move.