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Planning Bill

moved Amendment No. 121H: 121H: After Clause 130, insert the following new Clause— ““Application for development consent on commons, open spaces etc (1) This section applies if an application for development consent includes a proposed development of any kind on land which is or forms part of a common, fuel or field garden allotment or open spaces. (2) The provision of the Commons Act 2006 (c. 26) shall apply, together with those of all other existing legislation relating to commons in general and specific commons. (3) Subsection (4) applies in a case in which— (a) an application for development consent is made for development on a common, and (b) it is the intention of the owners of the commons to apply for its deregistration and to provide replacement land which they own or intend to acquire by agreement. (4) No consent shall be issued unless the Commission is satisfied that the replacement land is or will be subject to the same rights, trusts and incidents as have applied to the land included in the development consent.”” The noble Lord said: My Lords, Amendment No. 121H brings us to the issue of commons and village and town greens, which are special forms of common land. I am not suggesting that it is a perfect amendment but I hope that it will provide a means by which the Government, in the time left to us on the Bill, can find a way to solve certain problems. I am concerned about the implications of the Bill for commons. It is only two years since this House and the other place passed the Commons Act 2006 that brought up to date commons legislation, some of which goes back a long way. In particular it brought up to date provisions for the registration, deregistration and protection of commons, and confirmed their special status. Commons are usually small pieces of land scattered around the country, comprising around 3 per cent of the land area of England, and are special historical relics of the past that nowadays perform important functions not just in terms of the traditional rights of commoners, but for biodiversity, the environment and recreation. The important point about their special status is that it is a legal status provided by the Planning Act 2006 and is outside the planning system. This amendment probes the relationship between commons under the Planning Act which are outside the planning system and commons under this Bill as it will apply to large infrastructure developments which may affect commons. The Commons Act does not prevent development on commons, but it does give extra protection. In particular, Section 38 of the Commons Act 2006 means that for development on commons a separate application must be made to the Secretary of State for Defra unless a compulsory purchase order is made on that common. In that case, other protections apply. Commons are not only special, historical and valuable—often small—pieces of land scattered around the country, but they have an unusual status in that there are two kinds of rights on those commons. First, there are normal rights of ownership; all commons are owned by somebody, usually by private individuals. Secondly, there are rights of common, which are held by other people. Those, of course, are the commoners. Their rights might be to gather vegetation for fuel or bedding, ancient rights of turbary and pannage, and other such rights. Nowadays, the rights exercised by commoners on commons are mainly rights of grazing. These are rights over the common which would normally be held by the owner of the land, which in the case of commons are held by the commoners. The Commons Act provides that if a common ceases to be a common by being deregistered, equivalent land has to be provided. This is called replacement land and it must have replacement rights for the group of commoners who have had their rights displaced. All this was confirmed recently by an excellent document, Common Land Consents Policy Guidance, published by Defra in June 2008. In particular, it underlines that unless a compulsory purchase order is made on the common, the development that can be allowed must be quite small-scale and necessary for the common itself. The extra protection also includes developments on the common. The Commons Act consents that have to be made for development on the common include development that would not otherwise need planning permission, such as fencing and ditching. The regime is stricter than the normal planning regime and is in addition to having to apply for planning permission. I first raised the issues covered by these amendments in Committee. I have had discussions with the Minister and officials since then. I understand the issues far more clearly now than I did then; they are extremely complex. The issues come down, first, to questions about Part 3 of the Commons Act and the Commons Act consents that are required for development on commons, and the extent to which they are swept away by this Bill in the case of commons where development is sought as part of a major infrastructure development. Secondly, there are issues relating to replacement land. Clauses 129 and 130 of the Bill, which derive from the Acquisition of Land Act 1981, deal reasonably with the question of replacement land and commoners’ rights where the development consent issued by IPG includes a compulsory purchase order on a common. The clauses cover that very well. Clause 129 covers the question of replacement land, and Clause 130 covers the replacement rights of commoners. That still leaves the following questions open. First, does the Planning Bill, notably Clause 118, mean that an application for consent under Part 3 of the Commons Act 2006 is no longer required when there is an application for development consent under the Act? Secondly, if that is so, what is to prevent a situation in which a developer of a common and/or a subsequent occupier of that common finds that inappropriate rights of commons still exist on that development? Thirdly, do Clause 118(3) and Schedule 5 allow a development consent to remove commons rights from a common without the provisions of the Commons Act 2006 having to be used, particularly to provide the replacement land and/or rights? I do not believe that that is the Bill’s intention, because in the case of CPOs it is there but it is not in other cases. For replacement land where a CPO is not used—because, for example, I may be applying for an application for development consent for a large infrastructure development on common land that I own or where I have the owner’s agreement to develop it and the CPO is therefore not required—there appears to be no provision for replacement land and/or rights provided by Clauses 129 and 130 in the case of a CPO being used. Even if a replacement common is provided voluntarily, it is not clear in the Bill how that would be done. Presumably it would have to be done by a separate application under Section 16 of the Commons Act 2006 that deals with the registration of common land. These are technical and complex issues, but they are important; they are a byway in the discussion of the Bill because it is about commons and the way they are affected. It would be remiss of this House to let the Bill pass without these questions of common land, as part of applications for development consent, being resolved. I hope that we can agree on amendments to the Bill to deal with those questions, make it clear what the position is and continue to protect the special status of commons. I repeat that I am not saying that there should never be development of this kind on commons. The important thing is to ensure that, where such development takes place, the normal issues in relation to commons are considered as part of that development and, if necessary, replacement land and commons rights are produced. I beg to move.