My Lords, I rise once again to move on behalf of the noble Lord, Lord Greaves, Amendment 40C and to speak to the other amendments standing in his name in this group.
These are amendments to Clause 14 and Schedule 4, which amend the Commons Act 2006 by inserting a new Clause 15C and a new Schedule 1A. Their effect is to restrict the right of persons to apply to register land as a town or village green on the basis that it has been
used by persons for at least 20 years as of right for lawful sports and pastimes—that is to say, informal recreation, openly, without hindrance and without permission.
The new provisions end the right to apply for registration if a trigger event occurs. These are basically of two kinds: first, the publication of an application for planning permission on the land, or a similar action such as an application for development consent; or the publication for consultation of a draft development plan document—that is, a document that is proposed to form part of the local development framework or “local plan”—or a draft neighbourhood plan. In this context we welcome government Amendments 42 to 45 on neighbourhood plans, which appear to deal with some of our concerns in relation to those plans.
The trigger events are set out in the schedule. However, new Section 15C(5)(a) gives the Secretary of State powers to, “specify … additional trigger … events” by order. The purpose of Amendment 40C, therefore, is to ask the Minister to specify why the Government think they need these powers and what these further trigger events might be, and what the Government have in mind to use this rather draconian power for.
The other amendments are intended to assist the Government in their stated wish to align the system for registering greens with the planning system in cases where there is a published proposal for development, either as a planning application or as a draft of part of a local plan. Unfortunately, the proposals in the Bill do not do this. The problem is that there are two separate and different systems. The system for registering greens, set out in the Commons Act 2006 and rooted in the common law, is based on the facts of the case—whether the land has been used by persons for at least 20 years as of right for lawful sports and pastimes. It is based on the facts of past use of land.
Decisions in the planning system are a matter of policy and opinion about the future use of land. It is difficult to reconcile the two—to align them—but not impossible. The way this Bill deals with the matter is not to align the two processes, but to suspend one of them—the right to apply to register a green—when a trigger event occurs under the planning system.
We accept that the Government believe that there is a problem of misuse of the system of greens registration by some people in order to try to stop development, and that there is a weight of opinion behind this view. In Committee we moved amendments to probe the extent of this and its necessity. Now we are proposing ways in which both rights can be aligned within one process—the planning process—giving the Government what they want while retaining the effective right of people to put forward a view that a piece of land is a green, and to have that properly considered as part of the planning process. The amendments we have put forward suggest ways of doing this and could be taken individually. They are not necessarily a package.
Amendment 41B is the simplest, and just seeks to incorporate within the system of development management the question of whether a piece of land is a town or village green under the criteria set out in Section 15 of the Commons Act. It simply says that, where such a representation is made as part of the
development management process, this question is a material consideration. Of course, like any other such representation it may be accepted or rejected by the relevant decision-making authority. It should not slow down the process of making the decision in any significant way.
The first part of Amendment 45A says that where the trigger event is the publication of a draft development plan document, which includes a proposal for a piece of land that has not previously been in the public domain, the trigger event should not occur until three months following the date of that publication. This may occur, for instance, if a last-minute change is made to a draft development plan document covering land allocation, as a result of representations made as part of a previous round of consultation on that question, such as on a housing land availability study. It would still allow a green registration application to be made. The second part of Amendment 45A will in most cases be covered by the Government Amendments 42 to 45, for which I have already thanked the Minister. However, we recognise that this may be a step too far for the Government. So Amendment 45B states that if representations are made to a local planning authority or a neighbourhood planning body, as part of the normal consultations on a local plan or a neighbourhood development plan, that a particular piece of land is a town or village green, the authority must consider them having regard to the criteria set out in Section 15 of the Commons Act.
Although the appropriate authority would not have the power to designate and register the land as a green, applying the same criteria in this way would indeed align the two processes, which is what Ministers promised that they wanted to do, whether or not a trigger event has occurred. If the planning authority considers that the land qualifies as a green it could of course then be referred on to the commons registration authority for it to consider in the normal way. We expect this would be in a small minority of cases. However, the time taken to produce local plans would mean there is time for this process to take place. We emphasise that this procedure would only apply in plan making, which inevitably takes years rather than weeks, and not in the case of planning applications and the like which should be dealt with speedily.
These amendments are put forward in a positive way, in an effort to reconcile—indeed to align—the planning and green registration systems. In the disappointing event that the Minister is unable to accept them today, perhaps he can answer the following questions. There are six. If the intention is to align the system, what consideration can the planning bodies give during the plan-making process to representations that a piece of land qualifies as a town or village green, either as part of the local plan process or a neighbourhood plan? Secondly, if a planning authority or neighbourhood planning body considers a piece of land to be a green on the basis of the criteria in Section 15 of the Commons Act, what action may it take to promote or pursue that view?
Thirdly, what precise action in the submission and consideration of an application for planning permission or development consent will constitute publication,
and so constitute a trigger event? Fourthly, in the case of a draft development plan document, would the trigger event be the publication of a report to the local planning authority which included the details of the DPD; would it be the formal publication for consultation of the DPD following a council decision to publish a consultation; or when?
Fifthly, could the publication, for consultation or otherwise, of any prior reports intended to form part of the evidence base for a DPD but not forming a draft DPD as such, be the trigger event for those purposes? Lastly, can the question of whether a piece of land is a town or village green, having regard to the criteria set out in Section 15 of the Commons Act or otherwise, be a material consideration in the case of an application for planning permission or development consent?
I hope that the Minister will at least be able to provide clarity on those detailed but important questions. If he cannot do so today, perhaps we could return briefly to them at Third Reading, to allow him to do so. My noble friend Lord Greaves has promised me that, if that is the case, he will table only a simple amendment enabling those answers to be given. I beg to move.