Planning Bill

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Jim Fitzpatrick: I shall ask the Committee to reject the amendment. However, I am grateful to the hon. Member for North Cornwall for tabling it. I will explain why it should be rejected and will try to address the point raised by the right hon. Member for Skipton and Ripon.
The clause will place restrictions on how far orders granting development consent can go in authorising the compulsory purchase of common land, open space and fuel or field garden allotments. The restrictions are drawn from section 19 of the Acquisition of Land Act 1981. They provide that any order granting development consent that would also authorise the compulsory purchase of common land and other specified types of land can be made only after being confirmed by means of a special parliamentary procedure. There are two exceptions to that: first, where less than 200 sq m of common land will be acquired; secondly, where the applicant offers replacement land. I draw the attention of the right hon. Member for Skipton and Ripon to the explanatory notes for the Planning Bill. On clause 114, they state clearly that
“the Secretary of State is satisfied either that:
a) replacement land has been or will be given in exchange and that it will be subject to the same rights, trusts and incidents;
b) the land is being acquired in order to secure its preservation”.
I hope that that addresses the point that he has raised.
Mr. Curry: The fact of the matter is that with a road or a pipeline, there is likely to be common land on both sides. Where will we find the land that compensates for the land that has been taken, other than outside the common? If it is outside the common, how can the Secretary of State satisfy herself, in the terms of the Bill, that those rights can be attached to the new piece of land? It will not have those rights to start with.
Jim Fitzpatrick: Clearly, were the Secretary of State not satisfied, and the parliamentary procedure used, any hon. Member could object to the proposal. I understand the important issues that the right hon. Gentleman raises on transferring rights and entitlements, but the clause simply repeats provisions that are already extant in the 1981 Act. It will not introduce any new provisions or remove any existing rights. In that sense, the clause is simply a repetition.
On the question from the hon. Member for Meirionnydd Nant Conwy about the reason for the figure of 209.03 sq m, it is a straightforward conversion from the imperial measurement in the 1981 Act. That is how we end up with that rather obscure figure.
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A third exception exists. Special parliamentary procedure would not be required in this regard if the compulsory acquisition of common land is being carried out in order to secure its preservation or improve its management. Amendment No. 403 would require the Secretary of State in such cases to publish a statement explaining the means and extent of any preservation or improvements. The effect of the amendment would be problematic as it would require the Secretary of State to make a statement whether or not she was the decision maker. Furthermore, this statement would presumably be required before the decision was made, which would pose difficulties as the Secretary of State would not have been involved in the examination of the application.
However, I understand the concerns of the hon. Member for North Cornwall that the promoters of nationally significant infrastructure projects could claim to be acquiring common land for its preservation or management as a loophole to avoid needing to provide replacement land. I hope that I can reassure him and the Committee that we share his concern and that the Government are currently considering tabling an amendment that would prevent such a situation arising. With that assurance and the explanation of the other points, I ask him to withdraw the amendment. If the Government decide not to pursue the matter, he can return to it on Report. But as we intend to bring forward an amendment that should meet his needs, he should let us do the work.
Mr. Curry: Were I to table an amendment on Report to change 209.03 sq m to 210 sq m, on the grounds that a nice round figure makes disputes less likely—I would hate to fall out with somebody over 0.03 of a metre—would it be regarded as a concession that went beyond the Government’s compass? As we have had no concessions of any description up to now, would a piece of land of about that size meet with the Government’s approval? The suggestion is just in order to have a nice, tidy metric system, which I am rather in favour of.
Jim Fitzpatrick: I understand exactly where the right hon. Gentleman is coming from. I am personally a big fan of imperial measures. I would rather have seen the figure left as it was in the Land Acquisition Act. However, we do have an amendment to go to 200 sq m, if that would suit him. It is, however, a reduction in the amount that is contained in the Bill at present. I have heard what he has said. Obviously, we will reflect on his suggestion, and he will have the opportunity to return to the matter.
Finally, if there is no equivalent land to replace it with, the expectation is that the Secretary of State would simply not certify it and it would go to a special parliamentary procedure.
Dan Rogerson: I am grateful to the Minister. There are perhaps one or two problems with the clause in relation to that provision for compulsory purchase if it takes place without adequate explanation. I am grateful to the Minister for considering that. I am also grateful to him for standing up for imperial measurements and getting involved in that debate. As someone of a generation who was taught metric but was surrounded by adults who quoted back in imperial, I use that as an excuse for not being good at metalwork, woodwork or anything like that.
I am glad to hear that the Government are considering—[Interruption.]
The Chairman: Order. The Committee must let the hon. Gentleman speak.
Dan Rogerson: The key point here is certainly what the Minister was talking about and how the provision might be used as an excuse with regard to compensation. Even if it is not an excuse and there are legitimate reasons, exactly what those are must be made clear, because of stewardship issues and all sorts of matters, such as the Rural Payments Agency, as we heard from the right hon. Member for Skipton and Ripon. I look forward to seeing what the Government come up with. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 114 ordered to stand part of the Bill.
Clauses 115, 116 and 117 ordered to stand part of the Bill.

Clause 118

Public rights of way
Dan Rogerson: I beg to move amendment No. 404, in clause 118, page 58, line 6, at end insert—
‘(2) In order to be satisfied under subsection (1)(b), the decision-maker must have regard to public consultation.’.
Public rights of way are a controversial subject; many hours have been spent along this corridor in various Committees debating rights of way and rights of access. I took part in such debates when I served on the Committee considering the recent Commons Act 2006, along with the hon. Member for Meirionnydd Nant Conwy and perhaps others on this Bill.
It is crucial that people have the chance to comment on any proposal to alter or extinguish a right of way. The clause as drafted allows a right of way to be extinguished as long as the decision maker is satisfied that
“(a) an alternative right of way has been or will be provided, or
(b) the provision of an alternative right of way is not required.”
However, it does not say how that conclusion will be drawn and what information will be available on which the decision-maker will base his decision. Consultation must be part of it, and there should be a duty to consult specifically on that issue.
The proposal to extinguish a right of way may not have been a significant part of the overall debate on the application or on site-specific national policy statements. The previous consultation will have addressed the bigger issues and people in the local community may not have noticed what was happening to the rights of way. At the end of the process when the development consent is granted it is important that the issue is drawn to the attention of local people so that they have the chance to comment on it. It may affect only one or two people but in a very significant way, and they may not have been aware of it when they were considering bigger issues connected with the development: for example, its construction, its size, transport issues and so on.
I hope that the Government will consider accepting the amendment to ensure that the decision maker has all the information to hand when deciding whether the provisions in the clause have been met.
Robert Neill: We are very much inclined to the support the amendment because we want to maximise people’s consultation opportunities in the Bill as a matter of principle. Rights of way generate surprisingly strong feelings, as hon. Members know from our constituency postbags. It is better to have a requirement to have regard to consultation and to ensure that people feel that they have a fair crack of the whip, rather than a group of dedicated ramblers, for example, going for judicial review arguing that their concerns about a right of way that is precious to them have not been properly taken on board.
I hope that the Government will be sympathetic to the amendment.
Mr. Curry: As my hon. Friend said, this is a complex issue. On one hand, I am very sympathetic to farmers who find that a right of way goes straight across their working surfaces—for example, through the centre of a farmyard where animals are kept—and any attempt to divert it to a more sensible path usually meets with huge resistance.
On the other hand, many arable farmers display agriculture at its most bloody-minded in their absolute refusal to obey the law, which is that when land on which there is a public footpath is ploughed over, it should be made good within a certain time. But that land is often deliberately left so that to go across it is like engaging in an endurance test because walkers end up with mud up to their knees. There are important enforcement issues to be considered.
A lot of common sense needs to be brought to the issue. People need to recognise that there are genuine concerns about the management of livestock, and rights of way need to have a sensible regard to them. Equally, those historical rights of way have not been put there for the express purpose of interfering with the work of the agricultural community and irritating them, but it would be much better for all concerned if they did the minimum required to ensure that they are observed effectively. Those who do it rarely have cause for concern, but there are few issues that get people more angry than the obvious disregard of something through, as I have described it, sheer bloody-mindedness.
Mr. Llwyd: We all know, for example, that the procedure for stopping a current right of way, a stop order, is time-honoured and defined in law, and I am sure that many of us have had experience of inquiries of that kind. I am concerned about the wording of paragraph (b), which states that
“the provision of an alternative right of way is not required.”
Who is to decide that?
Let us think about public footpaths, which often join up with one other. If a public footpath does not join up with another, is that a reason for saying that it is not necessary? For example, if there were two footpaths in a locality running roughly in the same direction, does that mean that one is not necessary? I would be wary of ditching the current procedure whereby age-old usage and local conditions are examined, along with whether they link up with others and are in reasonable repair.
I would be the first to say that there have been occasions when our friends in the Ramblers Association have suddenly decided that they use a footpath that they have not known for half a century previously, and spin out the costs in time, money and sometimes a great deal of frustration. That said, there are many public rights of way that people are reliant upon and that have existed for good purpose over many generations, so I am wary of the clause’s working because I would not like someone totally divorced from the locality to decide suddenly that a footpath is not necessary, for whatever specious reason there might be. In his response, perhaps the Minister could tell the Committee what kind of reasons are likely to be adduced to support the contention that a right of way is not necessary, as that would be quite useful for the debate.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): I am grateful for the opportunity to ask the Minister to clarify the wording of the clause, because I am interested in the words “is not required.” On a variety of occasions I have had to deal with the protection of rights of way and have found myself at different times on different sides of the argument. For instance, many people will recall the van Hoogstraten case, concerning an outrageous obstruction of a public footpath where maintenance of the right of way was absolutely crucial. However, there has often been obstruction to the closure of rights of way in circumstances where closure is necessary for the reduction of crime and disorder, such as on council estates and in inner-city locations.
A few years ago, we clarified some of that in legislation in order to make it possible for appropriate closures to take place. The problem is that we all want appropriate closure and protection, and the definition of which is which, as the hon. Member for Meirionnydd Nant Conwy said, is not always easy. Therefore, being absolutely clear about what is meant by the words “is not required” is important, and it would be helpful if the Minister could spell that out.
I have some concern that public opinion could be the only arbiter of whether a particular closure takes place. There are some places where all sorts of closures would take place on the basis of instinctive public opinion, despite their being necessary for people to get around. In other circumstances, public opinion is absolutely the right criterion to use. Again, the devil is in the detail, so my concern is to be absolutely clear what the clause means and to ensure that there is no danger of unintended consequences, where wording is intended to mean one thing but perhaps at a later stage could be interpreted through case law to mean something rather different. Therefore, the clearest possible explanation from the Minister of the test for whether an alternative right of way is required would be extremely helpful.
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