Commons Bill [HL]

My Lords, I agree with everything that the noble Baroness has just said. Perhaps I may say to the noble Baroness, Lady Byford, that we will study the details of her remarks and that I shall write to her about the application of Clause 15(6) in such a case. I thank her for her comments this afternoon. The matter may very well raise its head in another place, as the noble Baroness, Lady Miller, said. Amendments Nos. 7 and 8 relate to a case in which 20 years’ recreational use as of right by local inhabitants has already taken place, but is then ended before someone can apply to register the land as a green. Clause 15(3) sets out a ““period of grace”” for applications; the period of grace is normally to be two years, but there is a transitional provision that when ““as of right”” use was ended before the clause comes into effect, it is to be five years. We resist the literal effect of the amendments, for the same reason that we did so at Report. We do not think that a year is long enough; 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. Once that happens, there is much to do, as I argued at Report, before it is possible to submit a viable application on behalf of local people to register the land as a green—such as those local people having to find out about that area of law, often from scratch. They must do their research, discover that the registration system exists; get hold of guidance material, investigate the detailed criteria for registration; and assess whether they are likely to have a case to make that meets the stringent criteria for registration. They must then find witnesses, and so on. As I said in the previous debate, one year may in some cases be long enough for all that to happen, but in others it may not, so our common land policy statement in 2002 said that we were minded to adopt the two-year period of grace that is now provided for. The transitional five-year period of grace reflects the one on which we originally consulted in 2000. It is needed only in a case where ““as of right”” use has ended before this clause even comes into effect. Until that happens, something as harmless-looking as a ““welcome”” notice can end even a very lengthy period of ““as of right”” use. But once Clause 15 takes effect, a challenge to longstanding ““as of right”” use will have to be overt if it is to be effective: the prohibition notice spoken of in the amendment comes to mind as one means. Once that is the case, the two year period of grace will be sufficient. Either way, I remind the House that the period of grace is a maximum period. There is nothing to stop people applying sooner, and they would be well advised not to leave doing so until the last moment. It is a matter of balance. We think that we have it right. A limited period of grace for application is provided. Failure to register land within that period means the opportunity to register is lost. That is very different from the customary law position under which evidence of any 20 years’ qualifying use established land permanently as a green, even if the use ended a very long time ago. I shall deal with two of the points that the noble Baroness made. It was suggested that applications to register greens might be made speculatively before any proof of use was gathered, and might take a long time to determine. We agree that these issues have to some extent been a problem to date because of the many uncertainties of greens registration law as it stands. One of the key aims of Clause 15 is to reduce these difficulties. Providing a limited period of grace—so long as it remains adequate—will take the current panic out of the situation. It will enable local people to assess whether they are likely to be able to make a viable case for registration. Knee-jerk applications should become less prevalent than they have been to date. By simplifying and clarifying the current law we should make it considerably more straightforward for applications to be determined within a reasonable period on the facts and evidence. Of course, proper consideration must continue to be given to the merits of each case. But we would be disappointed if the average determination time did not substantially shrink as a result of this clause. Finally, there was the argument that if a landowner who has tolerated over 20 years’ recreational use of a piece of land ““as of right”” now wishes to end such use, he faces a quandary. Should he end it now—making the period of grace for application under subsection (6)(a) five years from the date of doing so? Or should he wait for commencement—which would make the period of grace two years from the date of doing so—but without any certainty as to how soon Clause 15 will be commenced? In the end, I am afraid that is a decision that only the landowner can make. But I can assure the House that we will give high priority to ensuring early commencement of Clause 15. This is an important set of provisions and we need to bring them into effect at the earliest opportunity. I hope that the noble Baroness will withdraw the amendment.