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The noble Lord said: Amendment No. 54 is grouped with Amendment No. 65, which is a useful

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amendment tabled by my noble friend Lady Miller, and Amendment No. 66 in my name. The amendments are about commons and village and town greens and how the legislation interacts with them—and possibly existing legislation.

Amendment No. 54 is a probing amendment to find out how the Government see the HCA operating in relation to land that it acquires. As the HCA does not currently exist, I assume that “acquire” means all the commons and greens that it will possess in the future. If it does not, it is still a probing amendment to find out to what extent the HCA will have to abide by the provisions of the Commons Act and other legislation relating to commons over land that it owns, including areas subject to designation orders, or whether it will be different. It does not seem that long since some of us spent time in this Room discussing the details of the Commons Bill, as it then was, and, as inevitably happens on these occasions, becoming temporary experts in the subject. When it crops up again two years later, you have to remember what it was all about.

The Commons Act 2006 is an important piece of legislation that sets out in great detail a series of provisions relating to common land and town and village greens, including what can be done on them, development rules and restrictions, acquisition and disposal, relevant regulations and so on. It is generally regarded as a good piece of legislation that brings common land legislation up to date.

If the Housing and Communities Agency owns common land, either because it is part of a development it is acquiring land for or if it is part of an area in which it becomes greatly involved as the designated planning authority, will it be bound by the normal rules and regulations relating to common land or can it ride roughshod over them because of its special status? That is the fundamental question to which Amendment No. 54 seeks an answer. The response will let us know whether we need to take the matter further at a later stage.

My second amendment is much more technical, which I think I have understood. It has been researched and put to me by the Open Spaces Society, a voluntary group of experts on commons, and I should declare an interest as an ordinary member. Clause 9(4), (5) and (6) set out the basic provisions relating to commons. Clause 9(5) refers to:

It may be necessary, as part of a large development, to take part of a common or green. The amendment would make provision for exchanged land to continue to provide the amenity of that common land in the future, although it might be different land. An area of common might be taken from one place and replaced with another area elsewhere. That is a well understood procedure, and the Commons Act clearly sets out how it should be carried out. However, the advice I have received states that if this is read in conjunction with Clause 9 on the acquisition of land and with Schedule 2 1(1) on the application of the Acquisition of Land Act 1981, the result is that if open space must be

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acquired compulsorily, Section 19 of the 1981 Act will apply. Section 19 states that, subject to minor exceptions, the Secretary of State must be satisfied that equivalent land is provided in exchange. If it is not, it may have to be subject to the special parliamentary procedure. At the moment the Bill says that if the HCA compulsorily acquires common land, equivalent land must be provided, possibly by a CPO or other means, in order to provide replacement common land. However, if a local authority owner of an open space should be willing to dispose of the land by agreement, the safeguard is bypassed and there is no requirement under existing legislation to obtain adequate and suitable replacement land. That appears to be re-enacted in the Bill.

Amendment No. 56 is therefore based on Section 229 of the Town and Country Planning Act 1990, which states in a simplified form that even if the land was acquired voluntarily and with the agreement of the previous owners—we should remember that commons are owned by people—the fact that it is a common relates to its status, not to the ownership of it. If the owners of a common voluntarily hand over or sell the land to the HCA, the replacement land must still be provided. There appears to be a loophole, and I am advised by the Open Spaces Society that there have been a number of instances where common land has been provided by agreement and it has been difficult to secure the replacement of that land somewhere else in the vicinity. That is why I have tabled the amendment.

It will be interesting to hear the Government’s response. This is a very technical matter. The Minister may have the answers already, but if he does not, I would be delighted if he would write to us. It is an important matter. Obviously it will apply only to a few places on a few occasions, but we must be sure that they are dealt with properly in Bills such as this. I beg to move.

Baroness Miller of Chilthorne Domer: My Amendment No. 65 is grouped with my noble friend’s amendments, and I concur with all his points. We sat through both the Commons Bill, which as he reminded us was only in 2006, and the Natural Environment and Rural Communities Bill, which gave extra protection to town and village greens. My amendment explores why, when the Government brought in legislation that has provided the useful additional protections for those open spaces they very much needed, we are now setting up the HCA which, according to Clause 9, suggests that it can do anything with regard to planning permission and despite all the other enactments.

The Minister will probably reassure me by saying that the HCA will have to pay regard to issues of protection. As drafted and as I read it, provided that the agency accords with planning permission—it is a planning authority as proposed in the Bill—despite all the things we spent ages discussing and agreeing on in your Lordships’ House, it can drive a coach and horses through them. I hope that the Minister will tell me that I am wrong about that.

6.45 pm

I am very glad that my noble friend raised Section 19 of the Acquisition of Land Act 1981. It is particularly

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important because subsection (2) raises the issue of public consultation and the fact that the Secretary of State must give public notice of her intention so that all interested people can make representations and objections in relation to what will happen, and perhaps,

Sometimes the HCA’s proposals will be controversial and people will need to have their say. My noble friend’s rather neat amendment, applying Section 19 at the very least, is a good opportunity to enable this.

Lord Brooke of Sutton Mandeville: I rise with my conscience on my sleeve. I played no role whatever in the Commons Bill and I am therefore extremely grateful to the noble Lord, Lord Greaves, and the noble Baroness, Lady Miller of Chilthorne Domer. I drove through that village the other day, having gone modestly out of my way out of sheer curiosity about the noble Baroness’s hinterland. I am grateful to them for their vigilance, not least in this instance.

Perhaps I may explain why. The Wiltshire Record Society publishes an annual volume about something of a statistical or historical nature that has occurred in Wiltshire at any time in the past 1,000 years. In 1982, its volume was devoted to the judicial notebook of the magistrate of the hundred, which our village in Wiltshire was, for the years 1744-49. Either the magistrate or his clerk had kept a manuscript note of every one of those cases. Five hundred cases came in front of him during those five years, at the time when the war of the Austrian secession was going on. They were taking about 100 cases a year or a couple of cases a week. The society has 300 subscribers, including four Japanese universities, and prints an edition of 150 volumes which can be bought by the general public on an ad hoc basis. My favourite general knowledge question to people in the village is: what was the most frequent crime in our hundred between 1744 and 1749? The answer was the theft of firewood. It was patently clear that this was entirely due to the enclosures. I am not saying that that would necessarily be the problem in the 21st century, although there are moments when I wonder. Nevertheless, those who protect these spaces are people to whom we are greatly in debt. I look forward to the Minister’s reply.

Lord Bassam of Brighton: Yes, this is an interesting point. Perhaps we should fast forward to 1970 and the great Great Bentley referendum on the future of our village green. Yours truly was once pitted against his mother in a debate on whether we should have a village hall built on our common, Great Bentley village green. She lost the argument and I won, and no village hall was built on our village green. Subsequently, it was built on a village allotment. So this is an issue about which I have some strange historical knowledge. Great Bentley village green is the largest village green in England, as my mother always proudly told me, and has been protected since the time of the enclosures, to which the noble Lord, Lord Brooke, made reference. At the time, I did quite a lot of research on this.

This amendment is extremely impressive and one which I rather enjoy. We should thank the noble Lord,

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Lord Greaves, for raising this issue because it is important. Our village green is 42 acres and has been there for well over 200 years. The village fought hard to protect its common land when enclosures took place, and rightly so. Today, the issues are different but equally as important. Clearly, the value of open space in any community is very high indeed. This debate is helpful because it enables us to tease out some of the important issues relating to the HCA’s powers over commons, open spaces and allotments. The Government and I share wholeheartedly the determination of noble Lords to ensure that these provisions are absolutely right, and I hope that what I say will not only demonstrate that but perhaps put some minds to rest. It will also give us a period of reflection in which to ensure that we have got right the read-across between different pieces of legislation. Amendments Nos. 54 and 66 tabled by the noble Lord, Lord Greaves, and Amendment No. 65 tabled by the noble Baroness, Lady Miller of Chilthorne Domer, provide us with this opportunity.

It has been rightly argued that allotments, open spaces and commons should be subject to special protection, and attention has usefully been drawn to our earlier debates on commons. The Government agree about the need for protection, and the HCA will not simply be able to seize any land. It will be able to acquire land by agreement between the parties or by compulsory purchase, but only in support of its objectives. Moreover, if it is by compulsory purchase, the Secretary of State will have to confirm the compulsory purchase order. If the agency is compulsorily to acquire any land forming part of an allotment, open space or common, a different statutory procedure to the standard procedure will be used.

The noble Lord, Lord Greaves, referred to the Acquisition of Land Act 1981, which is where the procedure is set out. It requires that a compulsory purchase order relating to the purchase of such types of land must be subject to a special parliamentary procedure that includes a public inquiry and the laying before Parliament of its findings. Allotments, public spaces and commons will remain subject to the highest form of protection in respect of compulsory purchase.

As I have said, we are determined to get these provisions right, and it is fair to say that the amendments have prompted my noble friend and I to consider whether there might be a gap in our proposed legislation. The noble Lord made the case that that might be so, and while we do not necessarily share his view, we will double-check. We propose to take another look at the protection of special land in this Bill with a view to ensuring that we do not inadvertently create a loophole that could undermine the protection of such places. If the noble Lord is content to withdraw his amendment, we will come back to the issue on Report, although obviously there will be discussions between now and then. We will ensure that all the necessary protections are in place because we certainly do not want to undermine the value of commons, allotments and open spaces.

My further recommendation is that if you run into trouble with a campaign, you should hold a local

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referendum. That always ensures the proper protection of commons. It is what we did.

Lord Dixon-Smith: My general understanding is that if a compulsory purchase order is used to buy land that is designated common land or, perish the thought, the noble Lord’s village green in Great Bentley, part of the terms and conditions of the purchase would be that additional land would have to be acquired to replace what was being taken over for some other use. I would like an assurance that that will continue to be the case.

Lord Bassam of Brighton: The noble Lord, Lord Greaves, made this point. I am quickly scanning through the clause. I am sure that there are protections and that there has to be replacement. We can perhaps clarify that in correspondence.

Lord Greaves: I am grateful—

Lord Bassam of Brighton: The answer is yes.

Lord Greaves: I am grateful. I think that the answer is if you get a dispute about your village green, you should make sure that you are on the same side as your mother; or if you are the mother, you should make sure that your kids are on the same side.

Lord Bassam of Brighton: Precisely.

Lord Greaves: I am grateful for what the Minister said, and I look forward perhaps to having some correspondence with him. There are two general questions. First, I am not clear at all about whether, if the HCA owns a common as owner, it is or will be subject, either through the Commons Act, regulations, or whatever, to the same regime as any other owner of a common. If it is not, what are the differences? That is the first question, which underlies the first amendment.

On the second amendment, I am grateful for what the Minister said about equivalent land being provided from a compulsory purchase. The question is whether, if land is not compulsorily purchased but purchased by agreement, it is possible to legislate that the same provisions for equivalent replacement land should apply. That question may not be about the HCA at all; it may be about public authorities generally compulsorily purchasing or acquiring commons by agreement for development. Like the other issues that have been raised, the HCA and the Bill offer a convenient opportunity to raise the issue. If the HCA acquires common land by agreement for development, it ought to provide equivalent common land. The advice that I have from the Open Spaces Society is that that is not in the legislation at the moment. Can that therefore be looked at?

Lord Bassam of Brighton: I thought that I had dealt with that in my first response. For the ease of the Committee and to try to make progress, I will set some of this out in writing and share that with other Members of the Committee. If the noble Lord reads what I said, I think that it covered most of it. In

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general, there is no difference between us here. I think that the understanding of the noble Lord is the same as mine.

Lord Greaves: We are obviously interested in the outcomes and want to be satisfied about them. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Schedule 2 [Acquisition of land]:

[Amendment No. 54A not moved.]

Schedule 2 agreed to.

Clause 10 [Restrictions on disposal of land]:

Lord Dixon-Smith moved Amendment No. 55:

The noble Lord said: The flip side of land purchase is land sales, and Clause 10 deals with restrictions on the disposal of land. Clause 10(1) says:

This is a probing amendment to try to find out what considerations might be in the mind of the Secretary of State and, equally importantly, whether the needs of the community adjacent to the site—it might be a disused commercial site of some sort that the HCA wishes to take over for redevelopment—in particular can be taken into account.

7 pm

The business value of the site is always very difficult and subjective. I assume the situation to be that, by and large, the Homes and Communities Agency is not in the business of having a major land bank for development in the way in which commercial developers might. If it purchases a site, it will develop it. That is why it has purchased it, and that would be an entirely natural and normal process. One can see that there might be occasions when some of that site would be seen by the local community as somewhere that might give it the opportunity to have a play area or something of that type in the district, which would diminish the best commercial value.

If you said that an area of 50 yards by 50 yards, which is not a big area—it is perhaps two-thirds of an acre—could be set aside on a site for a play area, that is fine. But if that happens to be in an urban area and the alternative development happens to be residential, that site is worth more than £1 million an acre and that bit of ground is worth, say, £0.75 million, which comes off the overall value of the site. It may be in the interests of the community to have that site sold for less than the best value that could be obtained in order that the community could get a real and genuine benefit from it, even though it might affect only a small part of the site.

We tabled the amendment to explore with the Minister—I hope he will not mind my exploring with him in this way—what might be in the mind of the

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Secretary of State when we have to deal with the matter of the HCA perhaps not being able to dispose of land for less than the best consideration that can reasonably be obtained. Clearly, there are circumstances in which the community interest might indicate that the sum that should be obtained for the site should be less than it appears to be in this subsection. I beg to move.

Baroness Hamwee: I have Amendment No. 55A in this group, which seeks to define “best consideration”, in that it should be,

The issue of best consideration was debated at some length in the Commons, and I want to pick up some of the points from that debate. The Minister said that the restriction on the disposal of land was needed to safeguard the public purse. It seems to me that the thinking has moved on so that the public purse is regarded as being more than just a matter of immediate cash. Looking not very far into the future, “sustainability” covers far more than just cash, but if that is how the Government are thinking, it will achieve cash savings. I am sure that the Government are not as old-fashioned in their thinking as that seems to indicate. I did not want to put into the collective mind of the Government that even if one is looking only in monetary terms at what is best consideration, the criteria and the factors are more than society accepted in the relatively recent past.

Secondly, the issue of general consent was raised. The Secretary of State has the power to give a general consent. Like the noble Lord, I want to know what factors might be in the Secretary of State’s mind, and what comfort the Government could give on the basis of examples since 2003 of when a general consent has been, or could have been, given to local authorities. What is the current thinking on this?

My amendment is perhaps a little tougher than the noble Lord’s, and tougher than I am allowing for in these remarks. I am conscious of the time and the need to make progress, and it may be appropriate to come back to the issue of principle on Report, when Members of the Committee have better understood the Government’s thinking on this. Reading Hansards, I am not thus far persuaded that the Government’s thinking is where I would want to see it.

Baroness Ford: I also support these amendments. Will my noble friend the Minister take this away and have a look at current practice in both the Housing Corporation and English Partnerships? These clauses are a step back from how those organisations currently operate. A couple of examples may be of assistance.

When we were trying to pilot community land trusts over the past 18 months, it transpired that the Housing Corporation could have gifted land to the community land trust in question but the Housing Corporation had no land. English Partnerships had land, but could not gift it to the organisations. We were in a really ridiculous situation. A case study

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made us think about bringing both the land and the funding together. We had hoped that the new organisation would then have the ability to do what neither of us could do for perverse reasons.

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