Draft Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2013
The Committee consisted of the following Members:
† Blackman-Woods, Roberta (City of Durham) (Lab)
† Boles, Nick (Parliamentary Under-Secretary of State for Communities and Local Government)
† Carmichael, Neil (Stroud) (Con)
† Cryer, John (Leyton and Wanstead) (Lab)
† Freer, Mike (Finchley and Golders Green) (Con)
† Healey, John (Wentworth and Dearne) (Lab)
† Herbert, Nick (Arundel and South Downs) (Con)
† Jones, Susan Elan (Clwyd South) (Lab)
† Kaufman, Sir Gerald (Manchester, Gorton) (Lab)
† Perry, Claire (Devizes) (Con)
† Pincher, Christopher (Tamworth) (Con)
Raynsford, Mr Nick (Greenwich and Woolwich) (Lab)
† Simpson, David (Upper Bann) (DUP)
† Tomlinson, Justin (North Swindon) (Con)
† Ward, Mr David (Bradford East) (LD)
† Wiggin, Bill (North Herefordshire) (Con)
Margaret McKinnon, Leoni Kurt, Committee Clerks
† attended the Committee
Sixth Delegated Legislation Committee
Tuesday 28 January 2014
[Nadine Dorries in the Chair]
Draft Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2013
2.30 pm
The Parliamentary Under-Secretary of State for Communities and Local Government (Nick Boles): I beg to move,
That the Committee has considered the draft Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2013.
It is a great pleasure to serve under your wise chairmanship, Ms Dorries. I hope I will not break any of the rules, but as the hon. Member for City of Durham will tell you, that is not always guaranteed.
The Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2013 makes further reforms to the town and village green registration application process. These reforms extend the original reforms included in the Growth and Infrastructure Act 2013. If approved, this will be a 2014 order. The original reforms addressed problems with overlapping consent regimes, where applications for town or village green registration could cut across development proposed or permitted under the planning system. The need to address this—a problem recognised in reports commissioned under the previous Government—was thoroughly debated during the progress of the Growth and Infrastructure Bill. The principle of excluding town and village green applications while a development proposal is under consideration is therefore established.
Those original reforms introduced a series of “trigger” and “terminating” events, via the addition of schedule 1A —entitled “Exclusion of right under section 15”—to the Commons Act 2006. These prevent an application to register a town or village green from being made while a development proposal is being considered, or has been approved, under the main processes in the planning system, but they enable an application to resume if the proposed development is rejected or withdrawn. Where a trigger event occurs, the right to apply to register land as a town or village green is excluded. That right becomes exercisable again only if one of the corresponding terminating events occurs.
The reforms in this order add a series of additional trigger and terminating events to schedule 1A to the Commons Act 2006. They cover two matters, the first of which is local and neighbourhood plans. We propose to include new catch-all terminating events in respect of draft local plans and neighbourhood development plans. This will ensure that some of the less frequently occurring situations that can arise in the preparation of those plans are covered—for instance, if a draft local plan is found to be unsound, but is not formally withdrawn. These additional terminating events, which are set at two years after the local planning authority published
the draft plan, will ensure that the exclusion on registering land as a town or village green will lift where no development is proposed.The second category relates to local and neighbourhood development orders and orders under the Transport and Works Act 1992. The order also extends the protection from town and village green registration to development proposed or permitted in respect of three matters not already included in schedule 1A to the 2006 Act: local development orders, neighbourhood development orders and applications for deemed planning permission in respect of orders under the 1992 Act. The order introduces a series of trigger and terminating events to give effect to this. In such cases, planning permission for development may be granted without the need for a developer to apply for separate planning permission for individual schemes. Inserting new trigger and terminating events in respect of these measures will ensure a consistent approach to the town and village green application process across the entire planning system. The effect of the order will be to stop town and village green applications where there is an active development interest in land, but enable them to proceed where a development proposal is no longer proposed.
The Growth and Infrastructure Act 2013 sets out the principle of excluding applications for town and village green registration where a development proposal is under consideration or has been approved. This is part of our proposals to simplify the planning system and remove barriers to growth. It will remove the problem caused by overlapping consent regimes and ensure that decisions about the use of land are taken, where they should be, through the planning process. The responses to the consultation last year supported the principle of extending the protection from town and village green registration to these areas.
John Healey (Wentworth and Dearne) (Lab): The Minister has not given us a sense of the scale of the problem, and nor does the impact assessment. How many applications for registration of town and village greens are filed each year? Paragraph 7.2 of the impact assessment addresses the misuse of the application process. How many, and what proportion, of those applications are deemed to be misusing the system, thereby justifying these measures?
Nick Boles: I thank the right hon. Gentleman for his question. We know that what we are doing today —as opposed to what was discussed, debated and ultimately resolved during the passage of the Growth and Infrastructure Act 2013—is a tidying-up exercise to ensure that the policy agreed and accepted in that Act is applied to all forms of development and the planning processes attached to them. Very few local development orders or neighbourhood development orders have currently been proposed, and there are even fewer that have been affected by a potential town and village green application. Those innovations are relatively new, particularly the neighbourhood development orders, and the Government are keen that authorities that want to use them should do so. Having created a provision that applies to other planning processes, it seems right to extend it to these planning processes, even though they are currently not commonly used. The right hon. Gentleman will accept
that it would be a bit strange to wait until there is a problem before regularising and evening out the system.The data we have from 2011—which are estimated from nine months of data from Department for Environment, Food and Rural Affairs surveys—show that there were 137 applications for town and village greens. Seventy-seven of those applications were determined, with approximately a third approved and two thirds rejected. Without being overly long in my reply, the previous Government—of whom the right hon. Gentleman was a distinguished member, not least in my job—commissioned a study into various problems of overlapping consent regimes and the way in which other consent regimes could effectively interfere with the planning process. That latest review recommended exactly what we are doing to align the town and village green registration process, so that it does not actively interfere in the planning process. It is not that that was happening in thousands of places across the country, but where it was happening it was sometimes used to frustrate the planning process. That is why we introduced the proposal in the Growth and Infrastructure Act 2013 and why we are now trying to ensure that it addresses all forms of the planning process, not just those mentioned in the Act. I hope that answers his question.
2.38 pm
Roberta Blackman-Woods (City of Durham) (Lab): It is a pleasure to serve under your chairmanship, Ms Dorries. I also thank the Minister for his exposition of what is in the statutory instrument, because as I hope he agrees, this example is particularly opaque even by planning standards—members of the Committee will manage, because we have been around this territory before, when we considered sections 15 and 16 of the Growth and Infrastructure Act 2013.
In Committee and elsewhere, we felt that the Government’s approach was not commensurate with the degree of threat to development, and we have had many discussions on restricting too far the ability of local communities to register a valued piece of land, because they simply would not know in time that a planning application was about to be put into the public domain and therefore would be unable to act to register a green. We still think that is the case. The legislation has gone too far, and it is important that there should be a time period, whenever a planning application or a neighbourhood development order are about to be made—or, indeed, whenever a neighbourhood plan is prepared—to ensure that local people know that a piece of land that they treasure is under threat. We had many discussions in Committee and elsewhere about how communities would know that a piece of land that they treasure and use locally as part of their facilities is threatened if they simply do not know about an application. No real publicity requirement is attached for the developer, the provider of the neighbourhood plan or the local authority to ensure that the local community knows.
We thought it curious that the Government are taking what we consider to be quite a draconian approach to this whole area when the number of applications to register a village green is, in fact, falling. The figures I have are slightly different from those just given by the Minister; I have 134 in 2010 and 103 in 2011, but perhaps my figures are not complete.
Another mystery is why there is such tightening of the ability of people to register a village green at a time when the provisions in the Growth and Infrastructure Act 2013 have not really had time to bed in. They were quite extensive and meant that an application to register a village green would be stopped where a planning application had been publicised, where an application for development consent under the nationally significant infrastructure project regime had been publicised or where land had been identified for potential development in local and neighbourhood plans that had been published for consultation—therefore, quite an extensive removal of the rights of local people to register a village green and to do so in a timely manner. The draft order seeks to restrict the ability to register a village green even further. The Minister went through the detail, so I will not read it out again, but it is important to note in passing that restrictions now apply to local development or simply neighbourhood development orders and to orders under the Transport and Works Act 1992.
At one level, we can accept that the draft order is a tidying up of some of the measures in the Growth and Infrastructure Act 2013, but it is still worth asking the Minister to think again about whether the whole approach is necessary. I return to the point made by my right hon. Friend the Member for Wentworth and Dearne about the scale of the problem now faced by local government or others with registrations of a village green stopping development. Twenty-one cases are cited in the impact assessment, but we have no idea over what time period they arose, so without current figures it is difficult to know the scale of the problem that the draft order seeks to address.
I appreciate that the Government did some consultation on the measures in the draft order. Interestingly, however, although most people said that they were in favour of making the additional changes, they also said that they had no real idea of how important they would be, because at the moment the number of neighbourhood development orders is low. Even though people were broadly in agreement, there was still a certain degree of questioning as to whether the draft order was necessary. The impact assessment itself states:
“The measures outlined in this policy are considered precautionary and this reflects the lack of hard existing evidence available. As the town and village green reforms introduced as part of the Growth and Infrastructure Act 2013 have only just come into force, we do not yet have evidence of what effect the new trigger and terminating events will have on business.”
“As part of the consultation we did ask if respondents were able to provide any evidence of the likely impact of the proposals. Several respondents provided details of how they thought the proposals might impact business, but not any specific examples with a monetary value. In addition to this, as noted above, Local Development Orders, Neighbourhood Development Orders and Transport and Works Act Orders are very low in number. Taking into account these low numbers and a lack of evidence of town and village green applications prohibiting development of these areas, we cannot accurately monetise the benefits to business.”
We have an order before us with new provisions, but no evidence to back up the case that it is necessary.
I appreciate the Government’s argument that there is now another system in place to enable people to register village greens and green spaces, through neighbourhood
planning. The difficulty, which we talked about in Committee, is that not every area has a neighbourhood plan or can put one together or intends to do so. I think the Minister should have waited until more areas had a neighbourhood plan in place before introducing these draconian restrictions on registering a village green.The saving grace of the order is that it does something important, which is why we will not vote against it, but will abstain. It lifts the restriction on registering a town or village green when a neighbourhood plan is withdrawn or a site is removed from a neighbourhood plan. That is welcome, and I am sure will be taken up by communities that have suddenly found that a site is in a draft plan. Will the Minister clarify what he said about someone who is selling land and seeking planning permission? If that is withdrawn, will the restriction also be lifted on the registration of a town or village green?
2.45 pm
Nick Boles: First, I want to respond to the general argument. As the hon. Lady will know, the system of registering town and village greens is an ancient one and embedded in legislation, including the Inclosure Act 1857 and the Commons Act 1876. Critically, the planning system did not exist then, and there was no planning control whereby a community decided what sort of development it wanted and where, and what sort of protection it wanted and where.
If any community wants to identify some green space that is important to it and needs to be protected for that community, the best way of doing so is through the planning system. The hon. Lady is right that the Government have created this new and unprecedented opportunity, in the sense that it is of equal statutory weight through neighbourhood plans. It is also possible for communities that have not got round to doing a neighbourhood plan to include green spaces in a local plan and to make submissions in the local plan process.
The great advantage of that process is that it is open and transparent. The local plan cannot get through an examination without having gone through an enormous amount and several rounds of public consultation. A neighbourhood plan is even more open and transparent because there must be a referendum at the end of it.The Government are not arguing that the right to protect a vital bit of community green space should be restricted; we are arguing that the best way of doing that is through the planning process and that when that process itself is going through a formative process—either in forming a new plan or in considering a particular proposal—it is right that the more ancient parallel process, which was invented before planning, should be suspended.
I welcome the fact that the hon. Lady noted that we have been keen to specify when the suspension of a registration should stop. We do not want to withdraw this ancient right. We do not want to sweep it away and say that that can happen only through the planning process. We simply want to align the two, so that they are not confused and people do not try to use one to frustrate the other. There is no question but that the planning process is more intensely democratic than any others.
The hon. Lady asked a specific question. I am not sure whether my answer will be the one she seeks, but if it is not, perhaps I could write to her because I will be more accurate in writing than I might be now. I think she was asking about a particular application. If planning permission remains in place, the town and village green exclusion will remain until a terminating event occurs. If there has just been a planning application, which has not been determined and is withdrawn, I believe that that will stop any suspension of the town or village green. However, I will confirm that and write to her with a copy to other members of the Committee.