Commons Bill [HL]

My Lords, perhaps I may speak early in this particular debate for exactly that reason. Amendment No. 11, just moved by the noble Duke, is very closely linked, as he said, with the effects of government Amendments Nos. 14 and 16, which are in turn closely linked with the other amendments that we are proposing to this clause in order to meet some of the points raised in Grand Committee. If the noble Duke will bear with me, I would like to speak first to those government amendments before responding to his, because I think that will help to ensure a better debate. I apologise in advance for the length of my reply, but we are dealing here with an important part of this Bill; namely, greens, and I will be as quick as I can. I should like to begin by setting out the context for all of these amendments. Clause 15 replaces the current provisions in the Commons Registration Act 1965 about registration of town or village greens. Like the rest of that Act, those provisions will be repealed by this Bill, once it is enacted. The position to date under the 1965 Act, as amended by CROW, has been that if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on land for at least 20 years, the land may be registered as having become a green. Clause 15 is currently in the form in which it was introduced into this House, and broadly reflects the present greens definition under the 1965 Act. But we indicated in Committee that we would consider making various amendments to the clause, and these we have brought forward. Our aim is to deliver a provision that substantially reflects the principles on which greens law has been based across the centuries, but that also reflects the realities of modern living, and resolves some of the difficulties that have arisen under current case law. Our starting point in all of this is that where people have genuinely used a local area of land for their recreation as of right—that is, openly, without permission, and without force—and can show that this kind of use has continued for at least 20 years, it should be possible for them to get the land registered as a green. But if one or more of those things cannot be shown, then registration must remain impossible. Noble Lords will appreciate that these principles are firmly rooted in our ancient law of custom. I will now explain our reasoning behind each one of our amendments. Amendments Nos. 12 and 13 change Clause 15(2) and (3) in identical ways. The current requirement in those subsections is for the recreational use relied upon by an applicant for registration to be by a significant number of,"““the inhabitants of any locality, or of any neighbourhood within a locality””." This would be replaced by a much simpler requirement for that use to be made by a significant number of ““local inhabitants””. The phrase ““local inhabitants”” has a clear everyday meaning, and we do not attempt to define it in the Bill. What we are seeking to do with these two amendments is to make the position clearer and simpler for all concerned. The current term ““locality”” that was used in the 1965 Act has been much debated. It has proved too restrictive, because it is taken to refer to a recognised administrative locality, such as a parish. Adding the ““neighbourhood”” formula in 2000 has not resolved this difficulty. In urban areas in particular, it has proved problematic to show that the use that took place emanated from the right kind of area. The noble Lord, Lord Greaves, spoke of this problem in Grand Committee, and this amendment is the result. Essentially, the convoluted formula used on this front to date has failed to convey the crucial point, which is that whatever type of place people live in—urban, rural, large or small—their recreational use of a local area of land should be capable of justifying its registration as a green, so long as three critical conditions are met. First, that their recreational use takes place as of right—I have already summarised what that means; secondly, that it takes place for at least 20 years; and thirdly, that a significant number of people are involved in the recreational use. These are of course already the key tests under the 1965 Act as amended. Amendment No. 14 and new subsection (6), as proposed by our Amendment No. 16, relate only to a case where local inhabitants have already used land for recreation as of right for 20 years but where use as of right is then ended by the landowner. Clause 15 allows regulations to prescribe a period of grace after such use has ended, within which an application to register the land as a green may still be made. The underlying principle is that after that period of grace has elapsed it would be too late to apply for registration unless a fresh 20 years’ use was subsequently accumulated. Instead of our prescribing the period of grace in regulations, the two amendments taken together will set out the position in the Bill. In proposing to do that, we are responding to the views expressed in Committee that the setting of the period is an important policy matter that should be addressed in the Bill rather than in regulations. The effect of our amendments is that the default period of grace would be two years. There would be a transitional arrangement for cases where use as of right had already been ended before commencement; in such a case, the period of grace would be five years. Amendment No. 11 argues for the period of grace to be only 12 months, but we do not think that that is long enough. There is a balance to be struck. Yes, we must help landowners who wish to do so to achieve greater clarity about the status of such areas of land without encountering endless delay and uncertainty; but, on the other hand, there needs to be a fair opportunity for an application to be made to register land as a green if it has been used in a qualifying way for at least 20 years but its use is then brought into question. In relation to that aim, there is much to be done between the ending of use as of right by the landowner and submitting a viable application on behalf of local people to register the land as a green. First, those people must find out about the existence of that area of law. It is not the sort of knowledge that the average person carries in his head; it is complex and esoteric. They will need to do their research, discover that the registration system exists, get hold of guidance, investigate the detailed criteria for registration and assess the extent to which their own case is likely to meet the criteria for an application. If they think in principle that it will, they will then have to set about collecting detailed witness statements testifying to the use that particular local inhabitants have made of the land or know has been made of it by other local people. That is a lengthy process. All the statements and supporting information must then be put together in a proper application in the prescribed form to the commons registration authority. In some cases, one year may be long enough for all that to happen; in others, it will certainly not. We must remember that those who must do all that researching, assessing, collecting, co-ordinating, marshalling and submitting are ordinary people with their own lives to lead and day jobs to do. The same is true of the people on whose evidence they will be reliant as they assemble the case for registration. Those things inevitably take considerable time. That is why in our Common Land Policy Statement 2002 we said that we were minded to allow a two-year period of grace for applications. That was a shortening of the five-year period of grace that originally we had in mind, with little opposition, in our consultation paper of 2000. In normal cases, though, we do not think that five years is needed, so long as people become aware promptly of the need to take the kind of action that I have described. Under the principle, which I will describe in a moment, that would be set by our Amendment No. 16, challenges by the landowner to long-established as-of-right use would need to take forms such as physical exclusion of people or overt prohibition of access to be effective. So local people would be put on notice that their ability to use the land in future is being placed in jeopardy and that they need to take action to secure registration of the land, if there has been qualifying use and they consider that the various tests are met. So two years should normally be a long enough period of grace in such cases. To date, though, the position has been much less clear. There has been uncertainty about what some of the 1965 Act tests require the applicant to prove, with a considerable see-sawing of opinion in case law. Challenges to as-of-right use have been possible through more subtle means—such as simply erecting a welcome notice—that have failed to put local people on notice that that apparently friendly action constituted a threat to their future use of the land. That is why we suggest that a five-year period of grace should apply in any case where 20 years’ use as of right was achieved, but then ended before commencement of this clause. This is a purely transitional provision. Within five years of commencement of this clause, a two-year period of grace will always apply when as- of-right use is ended after 20 years or more, and our view is that it will then be sufficient. New subsection (5)(b), which is inserted by Amendment No. 16, addresses the concerns expressed in Committee by the noble Duke and the noble Baroness that this matter is too important to be dealt with by regulations. We have decided that they are right on this. So in place of the current subsection (4), we propose the following clear principle: in a case where there has already been 20 years’ use as of right, a subsequent grant of permission for local inhabitants to use the land for lawful sports and pastimes should not be regarded as making use as of right cease. Otherwise, it would prevent a successful application to register the land, even though there had been the requisite period and character of use. That would not be fair, especially since local people might not be put on notice until it was too late that their future recreational use of the land was being challenged by such giving of permission. Our aim here is simple: everyone should know where they stand if the landowner challenges well established as of right use. Because overt challenges, such as physically excluding people, or erecting prohibition notices, put local people on notice of a threat to their recreational use of the land, they will then be able to take stock and decide whether the character of the use to date is likely to support registration of the land as a green. I want to emphasise that nothing in this amendment will prevent a landowner taking clear action to make existing recreational use permissive at any point before 20 years’ use as of right has been achieved. So long as the permission given is effectively communicated to users of the land, that would immediately stop the clock running, and rule out a successful application to register the land. It is only once 20 years’ use as of right has been achieved in the first place that this amendment would have any effect. The other element of Amendment No. 16 is the introduction of new subsections (4) and (5)(a), which respond to the concerns expressed by the noble Lord, Lord Greaves, in Committee. In a situation where local people have used land as of right for lawful sports and pastimes for a period, but not yet for 20 years, it cannot be appropriate for any temporary statutory closure to wipe the slate clean, so that even though use as of right might then continue after the lifting of the statutory closure, the clock would automatically have been reset by the statutory closure to zero years. I emphasise that this would not necessarily be the effect of a statutory closure in any particular case, even if we did not table this amendment. The effect of such a closure at common law would depend on the circumstances, particularly on how long people were excluded for under the statutory closure. But we want to put this matter beyond doubt and make the position consistent. New subsection (4) makes it clear that a statutory closure does not of itself curtail any period of as of right use that has been achieved to date: it merely freezes the position as it stood when the closure was imposed. Of course, it remains open to the owner, during or after the period of statutory closure, to end as of right use, and that would then prevent the full 20 years being accumulated, but that is a different issue and is not affected by this amendment. New subsection (5)(a) makes it clear that in a case where 20 years’ as of right use has already been achieved, an application to register the land remains possible under subsection (2), even if there is a subsequent statutory closure. We think it worth while to spell out that in those circumstances an application could proceed under subsection (2) as if the recreational use continued to the time of application. I have taken a long time to explain what we have done to meet some of the concerns raised in Committee. I think it is now appropriate for me to sit down so that the other amendment in this group can be spoken to.