Commons Bill [HL]

My Lords, the amendment probes the effect of various possible characteristics of land on its ability to be registered as a green. I am grateful to the noble Baroness for moving it, because this is an important subject. I shall briefly discuss each of the scenarios raised by the amendment in order. Subsection (3A)(a) of the amendment is about land lawfully built on or paved before the commencement of the Act. There could be a viable application to register land as a green under this legislation only if a significant number of local inhabitants had actually been using the land as of right for lawful sports and pastimes for at least 20 years. Land covered by a secure building could not be used in this way, so the question of its registration would never arise, unless the building stood within a larger area that someone tried to register. I will deal with that in a moment under paragraph (b). Paths or paved areas within an area of land used for recreation could be used for lawful sports and pastimes in a qualifying way, and such use could legitimately contribute to a claim that land was green. We do not see any reason to exclude such areas arbitrarily from registration. Subsection (3A)(b) relates to a situation where perhaps most of an area of land is legitimately the subject of an application for registration, but a small part does not meet the criteria. The short answer is that land cannot be registered unless it meets the criteria. If there were an application to register an area of land and it were clear that most of it had been used in a qualifying way, but parts of it, such as buildings or fenced-off areas, had not, there would be two options for the local authority responsible for determining the application—or rather, the authority, as it may not be a local authority. It could invite the applicant to resubmit the plan of the land covered by the application, including only those parts of the land that had been used in a qualifying way, or, more straightforwardly, the authority could simply decide which parts of the land had been subject to qualifying use and register only those parts as green, leaving the remainder off the register. We consider that it is already possible for authorities to do this, and will remain so under the new Act. Subsection (3A)(c) concerns open space that has been lawfully fenced or has signs on or near the land limiting access, where perhaps access has been limited or prohibited for some part of the 20 years. Where the owner of any land has physically prevented people from using it for recreation, or has clearly indicated, by erecting prominent signs or other measures, that recreational use of the land is prohibited or that it takes place by permission only, 20 years’ use as of right can never occur in the first place, so a viable application to register the land cannot be made. The same is true where use as of right does take place on land, but from time to time that use is suspended for long enough to prevent any continuous period of 20 years’ use as of right ever being accumulated. Again, there could not be a viable application. Fencing is not directly relevant to these matters unless it physically prevents people from entering the land. If gates or other entry points are kept locked and the fence is kept in good condition, any trespassing by clambering over the fence or gate would be very unlikely to support a claim of as-of-right use. However, if the field boundaries were broken down or had gaps in them where people could freely enter, or the gates were left open or unlocked, or the rest of the land could be accessed from a public right of way across it, what would count would be the character of any recreational use that people made of the land as a whole. It would be wrong for the Bill to rule out registration of a land as a green simply because it is fenced or has some other formal hard boundary. Even our oldest greens might often offend against that particular criterion. Subsection (3B) of the noble Baroness’s amendment speaks of urban open space, and suggests that recreational use of it for 20 years should not be able to lead to registration. Urban open space may just as legitimately become a green as village open space. We believe that what counts is the character of any recreational use that occurs, not whether the land is situated in a city. Often it is made clear by notices around such urban open spaces that the land is made available solely by permission of the owner. Many are locked at night, which would be completely inconsistent with any claim that the land has become a green by long use as of right. If land has indeed been used as of right for lawful sports and pastimes by a significant number of local inhabitants for at least 20 years, the fact that it happens to be in an urban area should not prevent its registration as a green. If that were to become the case, our ancient expression ““town green”” would never have caught on in the first place. The noble Baroness asked pertinently about greens’ registration affecting affordable housing. We do not think it would. The criteria for registration, as I have already pointed out, are very tight indeed. As I say, the only cases that can succeed are those where local inhabitants have used land for lawful sports and pastimes for more than 20 years without false permission or secrecy. If such use has been permissive, there are no grounds for registration and the specific and limited periods of grace we are introducing after which registration will no longer be possible without the passage of another 20 years will help achieve clarity and certainty about the status. In a case where all the rigorous tests are met, it would not normally be appropriate to develop the land even for social housing. If in a particular case an area of green were the only suitable location for such development, it would be possible to apply for a statutory exchange between that and other land so that the green was created elsewhere and the current green developed. The noble Baroness also asked me whether we had consulted with officials from the Office of the Deputy Prime Minister. We consulted fully with them regarding the planning applications of greens registration as part of the extensive consultations we undertook on our various consultation papers as part of the preparations for the Bill. I have tried to explain where we stand on these important issues.