Growth and Infrastructure Bill

Memorandum submitted by the Open Spaces Society (GIB 42)

Introduction

1. The Open Spaces Society (OSS) is Britain’s oldest national conservation body, founded in 1865. We campaign for common land, town and village greens (TVG), open spaces and public paths, throughout England and Wales.

2. The Growth and Infrastructure Bill proposes, inter alia, a variety of reforms to the planning system. Some of those affect TVG and open spaces and are of particular concern to us. We are confining our comments in this memorandum to clauses 12, 13 and 19.

Summary

Clause 12, Registration of town and village greens, statement by owner

3. The OSS considers it imperative that local inhabitants are made aware of a landowner’s statement when it is deposited. Otherwise, they cannot know that the two-year period of grace during which they can apply to register land as a green is running, and they are deprived of their right to register. We recommend a requirement for notices on the land and an advertisement in the local newspaper, as a minimum.

Clause 13, Restriction on right to register land as town or village green

4. The OSS opposes this clause. It will remove the right for local inhabitants to apply for registration of land as a green once it has been marked down for development, even if this has not been publicised. Moreover, the provision goes far beyond the recommendations of the Penfold Report which the government states it is implementing. We would not oppose a redrafting in line with Penfold, but we believe the alleged problem can be addressed by tightening the existing regulations and guidance, to sift out poor applications and introduce timescales.

Clause 19, Special parliamentary procedure

5. The OSS sees no need for this clause. It removes the safeguard that parliament determines those few and important cases where there is no exchange land available for open space being taken on compulsory purchase, or where the exchange land is deemed too expensive. The provision that the Secretary of State may grant a certificate in relation to open space acquired for temporary ‘long-lived’ purposes is also unacceptable.

Clause 12

6. The OSS does not oppose this provision but considers it imperative that it is amended.

7. A landowner will be able to deposit a statement with the registration authority, bringing to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land to which the statement relates, without notifying those persons that the period has been brought to an end.

8. Where a period of such use has been brought to an end, under section 15(3) of the Commons Act 2006 (‘the 2006 Act’) the inhabitants of the locality have two years from the cessation of use in which to seek to register the land as a green.

9. If the inhabitants are unaware of the deposit of the statement they will not be on notice that time has started to run and, after two years, their right to register will be lost. Paragraph 62 of the explanatory notes to the bill makes clear that there is no intention to deprive local inhabitants of the right to seek to register but that becomes meaningless if the inhabitants have no idea that the time has begun to run against them.

10. The OSS regards it as imperative that the cessation is brought to the attention of local inhabitants at the same time as the statement is deposited with the registration authority. How it is done is a matter for discussion, but we believe that it would require, as a minimum, the erection of signs on the land and an advertisement in a local paper, advising of the deposit of the statement and of the two-year period. There should also be a list of prescribed national organisations to be notified.

Clause 13

Insufficient evidence of the need for change

11. The alleged rising number of TVG applications is stated as being the reason for the need to include clauses 12 and 13 in this bill.

12. However the Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs, Richard Benyon, admitted in the House of Commons on 23 May 2011 that there are no accurate figures available and the figures are estimates which include scaling-up for non-responding authorities (col 396W, nos 56635 and 56636).

13. In examples provided, of applications between 2005 and 2009, there was a large drop in the number of applications from 196 in 2008 to 139 in 2009 and only 134 in 2010 and 103 in 2011 (written answer to George Freeman MP, 19 November 2012). There is no evidence that the number of applications is increasing; they are already decreasing. Many authorities have not received any applications and so the scaling-up of non-reporting authorities means that the figures for applications are probably exaggerated.

14. In pioneer authorities where part 1 of the 2006 Act, including the provisions under section 15 for TVG applications, is being piloted, the Department for Environment, Food and Rural Affairs (Defra) encouraged authorities to advertise that various applications could be made. Even here there has not been a huge increase. One such authority, Kent, reported in 2011 that it only had 15 applications awaiting determination as opposed to 28 the previous year, and that it had a slight reduction in the number of applications.

15. The number of TVG applications is minuscule in relation to the number of planning applications. In 2010 there were 475,000 planning applications and in the year ending June 2010, 85 per cent of all district planning decisions were granted, an increase of 2 per cent when compared with June 2009. In the year ending June 2010, 71 per cent of planning applications were processed within 13 weeks (Report for Communities and Local Government, Planning Statistics, Release 14, September 2010).

16. In short, there is little evidence that the democratically-accountable planning process is being undermined or delayed by the TVG application process.

17. The government’s proposals go far beyond the recommendations of the Penfold Report. Penfold’s recommendation H was that there should be a review of the operation of the registration of TVGs in order to reduce the impact of the current arrangements on developments that have received planning permission. The report concluded that where the possibility of a TVG application has been considered as part of planning, the subsequent granting of planning permission should then provide protection from a TVG application for the duration of the permission. One of the problems is that use of the land by local people, where rights may have been acquired under section 15 of the 2006 Act, is not considered a material consideration in respect of planning matters.

18. Seventy six per cent of those responding to the Defra consultation agreed that a sifting or streamlined process would improve the quality and validity of applications, and would help to deter speculative applications. However, despite this overwhelming agreement, Defra is not developing an initial-sift procedure. This would protect valid applications whereas the bill will prohibit many genuine applications.

19. The intended effect of the reforms is to prevent the registration system being used to stop or delay planned development. However the Environmental Law Foundation, in its response to the Defra consultation, made clear that there is little or no opportunity for the public to comment on allocation of sites before a draft plan is published. Only 52 per cent of those responding to the consultation agreed that no application should be made where land is included in a draft plan. Respondents commented that the TVG process should be integrated into the planning system and included when local plans were being developed or consulted on. However, that is not what is in the bill, where the trigger events mean no application will be possible. Only half those responding believed that an application should not be made once planning permission had been given. There is clearly no overwhelming desire or need for such destructive changes as those contained in the bill.

20. Even though there was widespread concern by respondents about linking the TVG process and the designation of land as a local green space under the National Planning Policy Framework (NPPF), the impact assessment still links the two. There are no regulations or guidance about the new designation, there are few areas where there is a neighbourhood planning forum, and the society has received several inquiries about the difficulties of using the process. In addition such a designation does not include the granting of public access and the NPPF states that the designation ‘will not be appropriate for most green areas of open space’ (para 77).

The effect of the clause 13

21. Clause 13 provides that the right to register land as a green ceases on the occurrence of what is described as a ‘trigger event’. A trigger event is the publication of an application (our italics) for planning permission or of a draft of a development plan identifying the land for potential development.

22. The cessation of the right to register will end if there is a terminating event. Essentially, a terminating event means that the proposal is either withdrawn or is refused.

23. The consequences are that the simple act of making a planning application will bar local inhabitants from seeking to register land over which there has been 20 years or more indulgence in lawful sports and pastimes. Such a planning application might be for something minor which would be likely to get permission and thereby ensure that the right to register is lost. A landowner would then be free to seek permission for something more controversial in the knowledge that the local inhabitants have been permanently deprived of their right to register the land as a green.

24. The provision denies the right specifically granted to local inhabitants by section 15 of the 2006 Act. This section, which was passed with all-party support, largely reflects the common-law position before the codification of the rights of ‘lawful sports and pastimes’ which began with the Commons Registration Act 1965.

25. The other critical point which is pertinent to all rights which are acquired over time-often called prescriptive rights-is that the possession of the right is rarely asserted until the exercise of the right is challenged. This is because there is no need to do so until there is a challenge.

26. It is exactly the same with TVGs. The local inhabitants indulge in lawful sports and pastimes on the land in question, never thinking about whether they are acquiring, or have acquired, a right to register the land as a green. The point at which they become aware is the point at which their use of the land is challenged. Until then no one has taken action because there was no need. The system exists to ensure that those acquired rights are protected.

27. It cannot be proper that the right to register a green is removed by the publication of a development plan or planning application, giving local inhabitants no warning that their right has been terminated. Many of the trigger events will occur in secret, local people will not know that land has been earmarked for development until the draft neighbourhood plan has been published for consultation, for instance – and by then it is too late to register the land.

28. It is clear that the Penfold Report (see our para 17) was not recommending that the right to register land should be suspended or denied on the publication of a development plan or an application for planning permission. On the contrary, Penfold’s point was that such matters should all be considered together either alongside or as part of the planning process. We agree with this. The government, in clause 13, is going far beyond the Penfold recommendations.

29. One reason given by the government for these changes are those few cases where an application to register a green is made after the grant of planning permission and the start of building on the land. The OSS understands that issue, although it does not consider that the problem is anything like as prevalent as stated. However, one solution might be for the trigger event to be the grant of planning permission, as the planning application will put local inhabitants on notice that they need, where the conditions are satisfied, to seek registration of the land as a green. The application for planning permission and for registration could then be considered together as recommended by Penfold. We would be unlikely to oppose properly-drafted clauses reflecting the Penfold recommendations.

30. The government claims that the provisions are needed to deal with so-called vexatious applications but few applications are purely to thwart development. Once people discover that the land they have long enjoyed is threatened, they realise that it is not, as they thought, safe for ever. Often they have sufficient evidence to apply for it to be a green. This is not vexatious, it is a genuine response to a threat. The OSS has long argued for improvements to the TVG process, for example giving registration authorities greater powers to reject poorly-made applications at the beginning, and introducing timescales throughout the process (at present the only time limit is the six-week period for objection when an application is advertised). Amendments to the regulations and guidance could go a long way to improving the TVG registration process, to the benefit of all.

Clause 19

31. Special parliamentary procedure (SPP) applies in truly exceptional cases, where the intention is to acquire land of critical value to the public and it is not possible to provide equally advantageous exchange land. Under SPP it is parliament which has the final say; parliament decides whether the developer’s argument that it is unable to provide exchange land (whether for reasons of cost or practical constraint) is sufficient to outweigh the public interest in retaining access to open space. SPP has occurred in no more than eight cases in 12 years (see Special Proce d ure Orders since 2001 ) and these were all unopposed, so SPP can hardly be considered a barrier to development. Clause 19 (4A) withdraws that decision from parliament and places it in the hands of the Secretary of State, and paragraph (d) concedes that the only driver for that change is a perceived saving of time. That is not an adequate justification for removing the power of parliament to adjudicate in these cases.

32. Moreover, the decision of parliament to confirm an order is immune from judicial review, whereas the proposed power of the Secretary of State to make an order under the power granted by clause 19 is not. The delay caused by a judicial review could be much longer than any delay caused by the SPP. Is this what the government wants?

33. The proposed section 131 (4B) will allow the Secretary of State to issue a certificate where the open space land is being acquired for a temporary purpose although possibly long-lived. ‘Long-lived’ is not defined and it seems clear that, without clarification, the issue of a certificate could easily become permanent and, again, circumvent the will of Parliament, while the public is excluded from the open space for long periods with no exchange land.

34. Lastly clause 19(5) is also of great concern. It provides that sections 131 and 132 of the Planning Act no longer apply to section 130 of that Act. This means that SPP no longer applies to open space owned by the National Trust where it makes no representation about an order granting development consent. We cannot understand why this is thought necessary. 

November 2012

Prepared 27th November 2012