Planning Bill

My noble friend Lady Hamwee and I tabled Amendments Nos. 379 and 382 and have given notice of our intention to oppose the Question that Clauses 127 and 128 should stand part. Most of this is about commons. Some of us remember fondly the passage of the Commons Act 2006 through this House. It seems that ever since then we have had one Bill or another each Session in which the issue of commons bubbles up. I welcome the noble Lord, Lord Adonis, to the commons corner and to the technicalities of what is often seen as a side issue, though it is quite important. Amendments Nos. 379 and 382 were originally tabled as holding amendments so that we had something on these clauses in the Marshalled List. Amendment No. 382 is about rights of way. My purpose—it may well be a technical issue that can be answered afterwards in writing—is to find out what difference this clause and the Bill will make to the procedures on non-vehicular rights of way as regards extinguishment, diversion and so on. How will this work under the new system compared with how it works under compulsory purchase orders at the moment? I am not talking about normal procedures but about compulsory purchase orders under existing legislation. How will this change it, if at all? The rest of the points refer to commons. Clause 126 concerns compulsory purchase orders for existing commons or for replacement land where an existing common is to be compulsorily purchased and used for something else. Clause 127 is a very similar provision about the compulsory purchase of rights over commons. Of course, the ownership of a common and the people who have commoners’ rights and other rights on the common are two separate and different things. I want to probe the relationship between the two and the changes from the provisions in the Commons Act 2006 and in previous commons legislation—Section 9 of the Acquisition of Land Act 1981 and, most recently, the Housing and Regeneration Act 2008. Your Lordships' House last discussed commons during passage of the latter legislation. There are three broad issues. The first is how Clauses 126 and 127 vary, if at all, from the existing provisions in Section 9 of the Acquisition of Land Act 1981. I have had a good look at this legislation and can find only one variation, though there may be others; it concerns the Secretary of State’s decision on whether to order a public inquiry into a proposal to compulsorily purchase a common. Section 9 of the Act requires the Secretary of State to consider any representations made before deciding whether to have a public inquiry. That provision seems to have been missed out of this Bill. I would like to know whether that is so, and, if so, why it is. It is a small point, but it is a safeguard. The then Housing and Regeneration Bill had very similar provisions on the compulsory purchase of commons—in that case, by the Homes and Communities Agency, which may be the other major national organisation that the Government are setting up with new planning powers. Why are there differences between the way in which the Housing and Regeneration Act, particularly in Section 9 and Schedule 2, deals with the compulsory purchase of commons and the way in which it is being done in this legislation? The Housing and Regeneration Act provisions seem easier to read, simpler and more elegant. Perhaps we have had two lots of parliamentary draftsmen inventing the wheel together and coming up with different shaped wheels. It is not clear to me why, in two Bills that have gone through Parliament so closely together and everyone accepts are very closely linked in how development, regeneration and planning powers are to be used, we have two different ways of setting out the proposals. There is a second broad issue which we also raised when discussing the Housing and Regeneration Act, when the Government came up with a satisfactory solution as the legislation went through your Lordships' House. We have to tackle the same issue here—that the provisions for the acquisition of commons by people carrying out development appear to apply only to acquisition by compulsory purchase, not to acquisition by agreement. As I said, the issue was resolved satisfactorily during passage of the Housing and Regeneration Act though it seems to need to be resolved again here. Part 2 of Schedule 2 to the Housing and Regeneration Act contains the provisions included as a result of representations raised here. One problem is the question of how replacement land or rights—either land or rights over land that the developers already possess—are to be provided if a common is acquired by agreement rather than compulsion. How it should happen if there is a CPO is all set out in the Act: as a condition of that CPO, replacement land or replacement rights must be there. If the land is acquired by agreement, they do not have to be. That is the fundamental issue that needs sorting out. If land has been developed that has not gone through the proper procedure of registration and replacement land being provided, that land may remain as a common and people who are occupying that land for whatever purpose may find that those common rights still exist and have not been removed. There does not seem to be a procedure in the Bill for adequately removing them. The third broad issue is concern whether, if a developer acquires land by CPO, the existing safeguards and protections for commons will remain, or whether a developer simply owns a common. If a common forms part of an area of land with development consent and has not gone through the procedure to deregister as a common, do the existing safeguards and protections for that common in the Commons Acts remain? In a sense, this is a pale shadow of the debate that took place on Clauses 116 and 117. Clause 116 covered what may be included in the order granting development consent by the IPC. Schedule 5, with which my noble friend dealt, listed lots of things that can happen. In the case of commons, can the provision in Clause 116 and Schedule 5 sweep away all the protections for that land under the Commons Acts—for example, the protections that exist under Part 3 of the Commons Act 2006, which prohibits works on commons without consent and sets out the procedure for getting that consent? Having listened to that debate, I suspect that the answer is: yes it can and yes it may. If that is the case and that is how it is going to work, that sweeps away protection for commons that has existed since the Law of Property Act 1925. If it is possible to carry out development on a common without providing alternative common land or alternative rights on land that may be owned otherwise, that is a serious setback to the protection of commons in this country. I apologise to the Committee for detaining it on what might seem detailed and technical matters—because commons are detailed and technical matters—but they are important. Only two years ago, in the Commons Act, Parliament forcefully and vigorously established a new regime on commons and clearly stated that commons had to continue to be protected. It would be unfortunate if the Bill were to sweep away some of those protections. I look forward to hearing what the Minister says. He may not have the technical detailed information there to reply to everything that I have raised; if not, I look forward to correspondence, and perhaps discussion, before Report.