Growth and Infrastructure Bill House of Lords committee, 30 January 2013 Brief from the Open Spaces Society

with support from the Environmental Law Foundation

Clauses 13, 14 and 22 and schedule 4 Introduction The Open Spaces Society(1) and the Environmental Law Foundation(2) are concerned about the threat to town and village greens posed by clauses 13 and 14 of the Growth and Infrastructure Bill. The Bill will prevent local people from registering land as a town or village green, and protecting their rights to enjoy it, once it is in a developers sights. The Open Spaces Society is also concerned about clause 22 which removes the right of parliament to intervene and decide whether the compulsory purchase of open space, ie land used for public recreation, should proceed. Town and village greens (TVG) Land can be registered as a TVG if local people have used it for 20 years, for lawful sports and pastimes (ie any informal recreation), as of right, ie without being stopped, without using force, without permission and without being secretive. Local people must collect the evidence of use and submit it to the registration authority (county, borough or other unitary authority) who will then consider it, advertise it, receive objections and, if necessary, hold a public inquiry to determine the application. Once land is registered as a green it is protected from development, (3) although the land can be developed provided suitable land is given in exchange for that taken.

Clause 13 Please support amendments 61-63 This clause enables a landowner to deposit a statement, in the prescribed form, to bring an end to any period of use, as of right, for lawful sports and pastimes. There is no requirement for the landowner to publicise the fact that a statement has been deposited. Once a statement has been deposited there is a two-year period, under section 15(3)(c) of the Commons Act 2006, during which local people can apply to register the land as a green. 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. In the House of Commons public bill committee, the Minister of State, Department for Business, Innovation and Skills claimed that there would be publicity (tenth sitting, 29 November, col 369) but this needs to be on the face of the Bill. We consider it 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 regulations. The amendments propose publicity, site notice, advertisement in local newspaper and on authoritys website, and notification of prescribed organisations (for which there are precedents in the Countryside and Rights of Way Act 2000 and the Marine and Coastal Access Act 2009). Clause 14 and schedule 4 Please support amendments 6470 and oppose the questions that clause 14 and schedule 4 stand part of the bill Clause 14 suspends the right to register land as a TVG on the occurrence of what is described as a trigger event. Some of these events, which are listed in schedule 4, provide no notice to the local inhabitants that they have lost the right to register as a green land which they have long enjoyed for informal recreation. As soon as the land is threatened, it is too late to save it. The government claims that people would know of the threats through the neighbourhood planning process, but this process is in its infancy and is not occurring throughout England. There is no guarantee that local people who are using a piece of land will know what is proposed for it. Those who use and enjoy their local open spaces are not necessarily clued up about, or involved in, the planning process. 2

This is a particularly oppressive measure with no period of grace for people to gather their evidence of use. It should be noted that the Commons Act 2006, which sets out the current procedure for registering greens, had all-party support. The amendments to clause 14 seek to ameliorate the effect of the clause in a variety of ways. For instance, they provide a period of grace between the trigger event and the cut-off date for applications for greens, they provide for consultation, and they ensure the provision does not apply where there is no adopted local plan or neighbourhood development plan. The amendments to schedule 4 alter the triggers so that, for instance, they are the grant of planning permission (rather than an application for planning permission) and the adoption of a development plan (rather than its publication in draft). Some amendments seek to remove completely triggers which would not be known to the public beforehand. But in truth, clause 14 and schedule 4 are not capable of amendment to make them fair to the public and they should be opposed in their entirety. The clause and schedule are not grounded on evidence. As explained in our second-reading brief, we know that few people apply to register land as a green purely to prevent development. We have shown that the number of applications is decreasing. The provisions go way beyond the Penfold Report. We have proposed amendments to regulations and guidance which would address the problem of delays to planning applications but these have been ignored. Appendix 1 gives examples of greens which would probably not have been registered if the Growth and Infrastructure Bills clause 14 was in force. Common land and town and village greens Please oppose amendment 71B This seeks to amend the process for determining applications to deregister and exchange common land and village greens so that they are in future determined by the registration authority not the Planning Inspectorate on behalf of the Secretary of State for Environment, Food and Rural Affairs. If the land to be released exceeds 200 square metres in area, land must be provided in exchange and, in determining whether it is acceptable, the Planning Inspectorate has regard to the many interests in the land (those with rights, the public, the neighbourhood, nature conservation, public access, history and archaeology). It is vital that the Secretary of State retains this important function. It recognises the immense public important of common land and village greens, for the wide range of public benefits they provide and it ensures that decisions are consistent. Local authorities will have neither the time nor resources to give this matter the attention it deserves. 3

Special Parliamentary Procedure (SPP) At present, when a local authority or statutory undertaker seeks a development consent order (DCO) which involves the compulsory acquisition of open space, either it must provide suitable land in exchange or the DCO is subject to the consent of parliament under SPP. This is in recognition of the special qualities and value of open space. Clause 22 Please oppose the question that clause 22 stand part of the bill Clause 22 provides that, where an open space is threatened with a DCO and compulsory purchase and there is no suitable exchange land, or the exchange land is deemed too expensive, the Secretary of State for Communities and Local Government may himself decide that the DCO need not be subject to SPP. He would also need to be satisfied that it is strongly in the public interest for the development to be begun sooner than is likely to be possible if the order were subject to a SPP, but that is a small hurdle. In other words, parliament will no longer have the final say; its power is relinquished to the executive. Open Space is any land used for the purposes of public recreation. Therefore this provision puts at risk all open spaces enjoyed by the public, formally and informally. These include, for instance, the many acres of land registered as access land under the Countryside and Rights of Way Act 2000. SPP is rarely invoked, so why the need to do away with it? Perhaps there is a plan to take many more open spaces in future. SPP is there as the final safeguard when peoples rights over open space are threatened. Ministers must be required to provide good examples of why this change is needed in the public interest. Additionally the Secretary of State may circumvent SPP where the open space is being acquired for a temporary (although possibly long-lived) purpose. Long-lived is not defined and is left to the Secretary of State to determine; it could become permanent, denying the public its open space, with no exchange land, for a very long if not indefinite period. The decision of parliament under SPP 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 22 is not. The delay caused by a judicial review could be much longer than any delay caused by SPP. Is this what the government wants? Clause 22 denies the right of parliament to have the final say when valued public open space is threatened with compulsory purchase. It should be removed from the bill. Wycombe Rye, 68 acres of open space at High Wycombe in Buckinghamshire, was threatened with compulsory purchase for a road scheme in 1965. There was no exchange land and it was referred to a joint committee of parliament under SPP. The committee 4

annulled the order and the land has remained safe to this day, thanks to SPP. However, such instances are rare, showing that it is not much used and therefore there is no need to do away with it. Please oppose amendments 76 and 77 When open space (ie any land ... used for the purposes of public recreation) is threatened with compulsory purchase, the developer must provide suitable exchange land; if he does not, the compulsory purchase becomes subject to special parliamentary procedure (SPP). The effect of the amendments is to change the definition of open space so that it would cover only land designated by the local authority for public-recreation use. At present the protection of parliament is afforded to all land used for public recreation, formal and informal. But the amendments would remove this protection from: (1) the many thousands of acres of countryside (excluding commons) which were painstakingly mapped for access under the Countryside and Rights of Way Act 2000, and (2) hundreds of sites which people enjoy by custom for informal recreation. The organisations sponsoring these amendments claim that the minister wishes only to protect the most precious spaces and very specially protected land. But the provisions have existed in this form since the Acquisition of Land (Authorisation Procedure) Act 1946 (in which the Open Spaces Society played a part), and were intended to protect land which is valued by people for recreation. To introduce an arbitrary designation by a local authority makes a false distinction. A local authority often has a vested interest in land and is unlikely to designate an area where it has other intentions. Yet that land may be as precious to local people as a formally designated park. Just about any piece of land which is used for recreation is valued by local people. The Growth Bill in any case seeks to restrict the application of SPP. These amendments would restrict it still further. These amendments, and clause 22 of the Growth Bill, will put cherished open spaces at risk.

Notes 1. The Open Spaces Society is Britains oldest national conservation body, founded in 1865. We campaign for common land, town and village greens, open spaces and public paths throughout England and Wales. We offer technical advice on the law and protection of open spaces and paths. Further information about us is at www.oss.org.uk 2. 3. The Environmental Law Foundation is a charity which provides pro bono advice and legal support to communities faced with environmental problems. Village greens are protected from development by section 12 of the Inclosure Act 1845 and section 29 of the Commons Act 1876.

For further information contact: Kate Ashbrook, Open Spaces Society Email: hq@oss.org.uk Work 01491 573535, mobile Nicola Hodgson, Open Spaces Society Email: nicolahodgson@oss.org.uk Work 01491 573535

07771 655694

29 January 2013

APPENDIX 1 Examples of town and village greens which would probably not have been registered if the Growth and Infrastructure Bill was in force Barnsley, Cadwell, Cudworth (2009) Bristol, The Green, Pucklechurch (2012) Bristol, Whitchurch Green (2011) Bucks, Pimms Close, High Wycombe (2006) Calderdale, Crowtrees Lane, Rastrick (2009) Cheshire West and Chester, Land at Flashes Lane, Weston (2011) Devon, Sugary Green, Dartmouth (2011) Devon, Lower Park, Palk Close, Shaldon (2011) East Sussex, Herbrand Walk, Bexhill-on-Sea (2011) Essex, Brighton Road, Clacton-on-Sea (2012) Essex, Eastleigh Park, Basildon (2009) Gloucestershire, Bredon Road, Tewkesbury (2008) Hampshire, Mengham Park, Hayling Island (2009) Hertfordshire, Waterside at St Albans (2012) Hertfordshire, Woodcock Road, Borehamwood (2008) Kirklees, Clayton Fields, Huddersfield (2012) Leeds, Yeadon Banks (2012) Lincolnshire, Earlsfield Estate, Grantham (2008) London Borough of Southwark, Kings Stairs Garden (2011) Newcastle upon Tyne, Chadderton Field (2011) Northamptonshire, Oundle Road, Weldon (2012) Northumberland, The Old School Field, Haltwhistle (2011) North Yorkshire, land at Conistone village, Grassington (2010) Oxfordshire, Trap Grounds, Oxford (2005) Oxfordshire, Warneford Meadow, Oxford (2010) Redcar and Cleveland, Coatham Common (2010) Shropshire, Church Bridge Field, Dorrington (2012) Shropshire, land at Oswestry (2008) Staffordshire, Newpool Meadows, Knypersley (2009) Surrey, The Dell, Fetcham (2011) Surrey, Windmill Drive, Leatherhead (2009) Torbay, Wishing Fields, Brixham (2010) Wakefield, The Old Colliery Site, Newmillerdam (2009) West Sussex, Greensward, Goring (2009) West Sussex, Ramsey Close, Horsham (2009) Windsor and Maidenhead, The Kayles, Wraysbury (2011) Worcestershire, Austin Rise, Lickey Hills (2011) 7