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2.30 pm

Paddy Tipping: I am following my hon. Friend’s speech carefully and I know that people living on Rennals way in Calverton will follow it even more carefully, because they have used that land for 20 years for recreation and sport. They accept, reluctantly, that there is an existing planning permission, going back to 1972. Is my hon. Friend now saying that that planning consent does not automatically overturn the application for a village green?

Barry Gardiner: That is exactly what I am saying.

Paddy Tipping: Hurrah!

Barry Gardiner: While it always gives me great pleasure to provoke hurrahs from Labour Back Benchers, I am aware that my response does not necessarily spread
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sweetness and light in North Shropshire. I assure the hon. Member for North Shropshire that I understand the seriousness of his concerns about the way in which major infrastructure developments, affecting many people, could be delayed, or put off altogether, by this situation. I understand that emotions run high—

Mr. Paterson: I wish that the Minister could give me the same satisfaction as he has given the hon. Member for Sherwood (Paddy Tipping). In my case, the vast majority of local inhabitants regard the land as wasteland, which has been used by custom. Outline planning permission has been granted for the project by the relevant planning authority and substantial works have been carried out. All the surface has been cleared down to clinker, and a large security fence has been built. Substantial legal fees have been paid and archaeological and environmental tests have been carried out. I would have thought that that would mean that construction had begun, because all those activities are prerequisites of the construction process. Putting the foundations and the bricks and mortar in is the easy bit. The difficult bit is what has been done so far. Can the Minister confirm that what I have described is indeed the beginning of the construction process?

Barry Gardiner: I am genuinely sorry to disappoint the hon. Gentleman, because I understand the concerns of his constituents which he has explained so well this afternoon. Were he from another party I might have accused him of putting together material for a “Focus” leaflet, but it is clear that he has worked hard on the issue in pursuit of his constituents’ interests. However, the Bill will not change the legislative landscape in that area and to do what he is asking would be to go too far.

The change would mean, for example, that a developer who had dug an exploratory hole in the middle of the land by the date could press the registration authority to reject any future application for registration out of hand, on the basis that at some point in the future the planning consent over the land might be implemented. Even if local recreational use appeared to meet all the tests in clause 15, there could be no viable application to register the land because that single hole had been dug. We do not think that that can be right. Nor did we feel when we looked at this issue that we could exempt land from registration only if the pre-construction works had been substantial. We did consider including an indicator such as “substantial”, “significant” or some such wording. However, using such language would clearly reduce the clarity of the clause, and we have not had drawn to our attention any real-life cases where substantial pre-construction works have in fact been undertaken on land that is likely to be eligible for registration as a green based on past use.

On a previous occasion, my hon. Friend the Member for High Peak (Tom Levitt) has spoken about two particular cases in his constituency where areas that have been given planning consent—at Fairfield and New Mills—have been subject to local controversy over applications to register the land as a green. The hon. Member for Ludlow (Mr. Dunne) has spoken of a similar controversy in his own constituency. Today, we have heard the hon. Member for North Shropshire on the subject of land at Oswestry. I therefore understand
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that such cases provoke powerful and conflicting emotions and that a real sense of frustration can be felt by those seeking to promote developments, whether for social purposes or for business reasons. But I have a responsibility to strike the right balance in this clause, and I believe we have done that.

I am grateful to the hon. Member for South-East Cambridgeshire for acknowledging the concessions that we have made so far. What we cannot do is to provide, in effect, that planning permission overrides in all cases the ability to register land as a green even if the requisite use has taken place. I therefore ask the hon. Gentleman not to press his amendment.

Mr. Paterson rose—

Mr. Paice: Given that my hon. Friend the Member for North Shropshire (Mr. Paterson) wishes to challenge the Minister, it might be helpful if I were to allow him to intervene on me—

Madam Deputy Speaker: Order. I am afraid that the hon. Gentleman has already spoken on this group.

Mr. Paice: I was not suggesting that my hon. Friend made a speech: I was offering to give way to him.

Madam Deputy Speaker: My point is that you cannot make a further speech, so there is no opportunity for the hon. Gentleman to intervene. The Minister had sat down, so no one can intervene on him.

Mr. Paice: On a point of order, Madam Deputy Speaker. I am a bit lost. We have been debating a group of amendments with an amendment to an amendment. I could not move the amendment to the amendment until the Minister had moved his amendment. Having done so, I assumed that I would have an opportunity to reply to the Minister’s response to amendment (a), which could not have been the lead amendment.

Madam Deputy Speaker: That amendment is in the group that is under discussion and therefore it was included in that group. I apologise, but I can do nothing further to help the hon. Gentleman.

Mr. Paice: Further to that point of order, Madam Deputy Speaker. Perhaps you could give me some guidance. If an amendment to an amendment cannot be moved before the principal amendment is moved, how is it possible to move an amendment to an amendment or even to withdraw an amendment to an amendment? It stands to reason that if one wants to move an amendment to an amendment, one needs to have the opportunity.

Madam Deputy Speaker: I remind the hon. Gentleman that he spoke immediately after the Minister moved the amendments, at which time he had the opportunity to raise the points that he wishes to raise now.

Amendment agreed to.

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Amendments made: No. 6, in page 7, line 38, leave out ‘local inhabitants' and insert—

‘the inhabitants of any locality, or of any neighbourhood within a locality,'

No. 7, in page 7, line 44, after ‘applies' insert ‘(subject to subsection (4A))'.

No. 8, in page 8, line 1, leave out ‘local inhabitants' and insert—

‘the inhabitants of any locality, or of any neighbourhood within a locality,'.

No. 9, in page 8, line 5, leave out from ‘paragraph (b)' to end of line 7.

No. 10, in page 8, line 7, at end insert—

‘(4A) Subsection (4) does not apply in relation to any land where—

(a) planning permission was granted before 23 June 2006 in respect of the land;

(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and

(c) the land—

(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes.'— [Barry Gardiner.]

Clause 16

Deregistration and exchange: applications

Amendment made: No. 11, in page 9, line 6, at end insert—

‘(aa) the replacement land must be land to which this Part applies;'.— [Barry Gardiner]

Clause 17

Deregistration and exchange: orders

Amendment made: No. 12, in page 10, line 38, leave out ‘Part 1 of'.— [Barry Gardiner.]

Clause 19


Amendment made: No. 13, in page 11, line 35, at end insert—

Clause 24

Applications etc

Barry Gardiner: I beg to move amendment No. 14, in page 13, line 38, after ‘Schedule 1' insert—

‘(ba) paragraph 1A or 1B of Schedule 2'.

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Madam Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 16 and 95 to 108.

Barry Gardiner: We have made it clear that we are not prepared to countenance an unrestricted reopening of the registers under the Bill. We had an interesting discussion in Committee, and subsequently, on whether there should be a review of inflated rights registered under the Commons Registration Act 1965. Schedule 2 makes limited provision both to add land to the registers and to remove land; that is a careful balance, which the new Government amendments maintain.

Government amendment No. 95 will enable additions to the register of land that Parliament has recognised as common land, or town or village greens. It follows from an amendment tabled in Committee by the hon. Member for South-East Cambridgeshire (Mr. Paice), which we might call the “Pumfrey” amendment. The hon. Gentleman was concerned that land could have been omitted from registration under the 1965 Act, even though, by virtue of some statutory provision, it was beyond doubt common land or green. Our amendment enables those omissions to be rectified.

Government amendment No. 95 also enables the registration of land that has been statutorily allotted as recreation grounds under 19th-century enclosure awards—a facility that I am sure will appeal to my hon. Friend the Member for Sherwood (Paddy Tipping) and his correspondent, Mrs. June Perry. For example, in cases where an earlier statute may have defined the extent of a common in a plan deposited with the House authorities during the passage of the corresponding Bill through Parliament, part, or all, of the lands defined in the plan were overlooked and not registered under the 1965 Act. I believe that just such a case—at Monken Hadley common, in Hertfordshire—was identified by Mr. William Pumfrey in correspondence with the hon. Member for South-East Cambridgeshire. The amendment would provide an answer in similar cases.

Government amendment No. 14 amends clause 24 so that we have the power to restrict applications, under Government amendment No. 95, to persons defined in regulations. That might be useful where the land has since been developed.

Government amendments Nos. 100, 104 and 107 provide a further or alternative mechanism to enable the deregistration of buildings and the curtilage of buildings, where they have been present since before the land was registered. We have learned that some large commons may have been registered so as mistakenly to include cottages or gardens abutting the common, even though there was an inquiry into the registration. It seems that the error may have gone unnoticed, or that the commissioner was unable to correct the error if no timely objection had been made. It may not be possible to deal with such mistakes under paragraphs 4 or 5 of schedule 2.

These amendments enable the deregistration of such land, but only if it can be shown that the land was covered by buildings, or the curtilage of buildings, at the time of the original provisional registration and continuously up to the date of determination of the application. The amendments provide the right balance in enabling long-established homes and gardens to be
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deregistered, without calling into question the registration of common land generally, where the registration was properly inquired into by a commons commissioner.

Government amendment No. 107 is consequential on Government amendments Nos. 100 and 104, and deletes from existing paragraph 5 a criterion for deregistration of greens, which is now essentially replicated in new paragraph 4A to schedule 2.

Government amendments Nos. 96 to 99, 101 to 103, 105, 106 and 108 enable changes to the register under schedule 2 on the initiative of the commons registration authority itself, rather than in response to an application. That approach is consistent with the way things are dealt with elsewhere in part 1. It will enable local authorities to deal with problems of which they are already aware, and in respect of which it would be in the public interest to act, regardless of whether an application is made by, for example, the landowner.

Government amendment No. 16 is purely consequential. It applies clause 24 to proposals made by registration authorities under schedule 2, so that regulations may be made about the process to be applied to a proposal.

Mr. Paice: I support this group of amendments and I simply want to thank the Minister for accepting what he described as the “Pumfrey” amendment. As he knows—I am sure that he has read all the paperwork—Mr. Pumfrey has been an assiduous follower of our proceedings and has come up with a number of amendments, one of which we have already debated. Amendment No. 95 is especially important, as it applies to the common in which Mr. Pumfrey has a particular interest. I apologise to the Minister for my earlier, slightly senile moment, when I discussed that amendment in connection with an earlier group. That happened because of confusion between the amendment numbers that the Minister gave in his letter to me, and those that appear on the Order Paper.

I am grateful to the Minister for tabling amendment No. 95, which will enable the registration of many commons—including some in my own constituency—that were established by virtue of their own legislation. Some were not registered post-1965 because it was believed—wrongly—that to do so was unnecessary as they had their own legislation. The amendment rectifies that situation and I am extremely grateful to the Minister for tabling it.

Paddy Tipping: I point out briefly to the Minister, and more particularly to his officials, that the amendments will be welcomed by Mrs. June Perry, who, on Sunday in Nottingham, will lead an annual walk around 130 acres of land, consisting of three miles-worth of public walks and five public paths that are allotted recreation land.

The serious point is that Mrs. Perry could not understand why the land was not going to be registered under the Bill. She entered into correspondence, and the response from the Department’s officials has been extremely helpful. I am delighted, and it is clear that the new regulations, when they are ready, will enable Nottingham city council to register the land as common land.

Once again, thanks—and hurrah!

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2.45 pm

David Maclean (Penrith and The Border) (Con): I rise to support the amendments, but I want to press the Minister about the need in due course to produce regulations dealing with submitting notification of transfers and keeping the registers up to date.

At present, the registers record the existence of common rights, but not who owns them. If the rights were not registered in 1965, they have ceased to exist. The problem is that there is no register of who owns common rights. The registers reflected the position in 1965 but they have not been updated since, and numerous transfers and sales of rights have taken place.

The Bill does not really improve the situation. After reflecting and consulting widely on the matter, I entirely accept that we cannot reopen the registers. Like his predecessor in Committee, the Minister is right about that. Although there are many injustices because the registers were not reopened, I am now convinced that as many new injustices would arise if we reopened them and tried to correct the mistakes. Too much time has passed, and it is no longer possible to do anything about it.

However, in respect of notification, the Government assert that, if information on ownership is required, it is a simple matter to search the dominant tenement, as detailed in the registers of common rights. That search can be carried out at the Land Registry, but I stress to the Minister—I think that his officials know this already—that that is a very cumbersome process for several reasons. First, the field numbers detailed in the commons registers are no longer used, so it is difficult to identify the dominant tenement without considerable research. Secondly, numerous searches of the Land Registry would have to be made, one for each entry on the commons registers with rights attached to land. Thirdly, searches of the Land Registry would have to be repeated every time that a list of owners was required, as there is no process for keeping the “live” register updated. Finally, the costs of collating information would be burdensome on the party that needed it. Sometimes, that would be the Minister’s Department, but on other occasions it would be English Nature when it was undertaking conservation work, or commoners wishing to enter agri-environment schemes or form commons associations.

The Government argue that there can be only one definitive record of ownership. If there were more than one record of that, they ask, which would take priority if there were inconsistencies between the Land Registry and the commons register entries? Their reasoning is undoubtedly correct, but that should not prevent them from making it a requirement that transfers of rights must be notified to the relevant local authority, perhaps accompanied by a certificate from the Land Registry. The commons registers would not be proof of ownership—only the Land Registry documents could provide that—but they would at least be worthwhile, because they would contain useful documents about where ownership truly lay.

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