Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I beg to move amendment No. 1, in page 7, line 24,leave out ‘or (3)' and insert ‘, (3) or(3A)'.

Anne Begg (Aberdeen South, Labour)

With this it will be convenient to take thefollowing: Government amendments Nos. 2 to5.

Amendment No. 43,in clause 15, page 7, line 44, leave out subsection(5)(b).

Governmentamendment No.6.

Amendment No. 44,in clause 15, page 8, line 4, leave out subsection(6)(a).

Amendment No.45, in clause 15, page 8, line 8, leave out ‘two years' andinsert ‘oneyear'.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

The amendments respond to a concern raised byConservative Front-Bench Members on Third Reading in another place thatland on which houses had recently been built might meet the criteriafor registration as a green under the clause. That situation mightarise if land had already been used as of right by local inhabitantsfor lawful sports and pastimes for at least 20 years before thedevelopment took place. It would be an unusual circumstance, but itwould be unacceptable if the clause were to allow the registration ofland where houses stand today. The amendments will prevent that fromhappening. If land was covered by a building or its curtilage on 18April 2006, the date the amendments were tabled, it will not beregistrable.

Paddy Tipping (PPS (Rt Hon Jack Straw, Secretary of State), Foreign & Commonwealth Office; Sherwood, Labour)

I am sure that the word“curtilage” has a good deal of legal significance.Presumably it applies to gardens, outbuildings and paddocks. Inprinciple, therefore, it could mean quite a large take of land. Can theMinister explain what curtilagemeans?

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I am grateful to my hon. Friend for offering methe opportunity. A judicial decision on the meaning of curtilage wasgiven in the Court of Appeal in 2000. He will recall, being a representative of Nottinghamshire, that the case was Skerritts of NottinghamLtd v. Secretary of State for the Environment, Transport and theRegions. The court held that land is considered to be within thecurtilage if it is part and parcel of the principal building or otherstructure. Land is within the curtilage if it is owned and enjoyed withthe principal building and can be regarded as ancillary to it. It is aquestion of fact and degree in each case, and examples include a yard,basement area, passageway, driveway and garden, which are intrinsicallypart and parcel of the house. If houses have been built on one part ofa larger area of  land that has been used as a green, one would not expect the whole ofthe land to be regarded as the curtilage of the houses. If such houseshad physical enclosures around them to create their own space, theircurtilages might well be taken to be defined by those enclosures, butthose curtilages would not extend to the rest of the land. I hope thatthat is helpful to my hon. Friend.

Several hon. Membersrose—

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I give way first to my hon. Friend the Member forSherwood (PaddyTipping).

Paddy Tipping (PPS (Rt Hon Jack Straw, Secretary of State), Foreign & Commonwealth Office; Sherwood, Labour)

I know Skerritts, and am grateful for thedescription. However, this matter leads to difficulties. We have tolook at issues on a case-by-case basis. Clearly, a paddock at the endof a garden might or might not be within the curtilage of a building,depending on the history. We shall need to reflect on the issue alittle more, because it will becomecontentious.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I am glad to say that I am not a lawyer, and Ihesitate to go much beyond my brief in trying to define whether apaddock is curtilage. My lay person’s view is that a paddock isancillary to a stable or other land on which horses are kept, but notto the principal building. However, as I say, I am not alawyer.

Paul Truswell (Pudsey, Labour)

At the risk of being obtuse,may I pursue the Minister over the definition of a building? Is abuilding a house, barn, store, cattle shed, shelter orbirdwatchers’ hide? Are we talking about any sort of building?If so, will that not cause further problems, given that buildings mightbe erected to thwart town greenapplications?

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I feel a note coming on. The key phrase that Iused—and that I understand was used in the judgment of2000—was “principal building”. A shed, greenhouseor stable would not be regarded as principal. The definition ofbuilding is used in everyday speaking terms. I suggest that my hon.Friend should focus on the phrase “principal building” inthinking about thisissue.

Tom Levitt (PPS (Rt Hon Hilary Benn, Secretary of State), Department for International Development; High Peak, Labour)

I hope to catch your eye later,Miss Begg. I should like to raise a particular local issue.

In the Minister’s view,is a graveyard curtilage? Would it make a difference if the graveyardwere fully occupied? If the chapel to which the graveyard was attachedwere derelict, would that make adifference?

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

My hon. Friend raises a fascinating question, onwhich I shall reflect. Perhaps a graveyard is curtilage to a church,the church being the principal building. However, I need to givefurther thought to that.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I thank the Minister for giving way. I want to getback to the word “building”. My question will not be asobtuse as some others. Does “building” mean a completedbuilding? Bearing in mind that the  designation of the land is triggered on a specific date, therewill—I have been told of examples—be buildings underconstruction to which the clause would apply. Clearly, we need toclarifythat.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I am grateful to the hon. Gentleman for askingsomething about which I have thought. Any particular case would be amatter for interpretation on all the facts and evidence, but ourgeneral view is that if a building was already in the course ofconstruction on 18 April 2006, it would be covered by the exemption, aswould any curtilage set out for it on the planning consent. If it hadgot no further than a few trenches or drains, that might be a differentmatter. If a start had been made on erecting the fabric of thebuilding, we think that it would be exempted under the formulation.That would not apply to other buildings that were scheduled under thesame development but had not yet been constructed on that date. Thepurpose of amendment No. 4 is to come to the assistance of buildingsthat already existed on 18 April, rather than to help implement partsof planning consents that had not by then beenimplemented.

David Drew (Stroud, Labour)

This intervention is germane to that point. One ofthe problems with the planning system is that someone could havereceived permission for a building many years before and they can provethat they have started its construction. My hon. Friend the Member forHigh Peak (Tom Levitt) asks what we mean by “underconstruction”. If someone wanted to prove the point, the factthat someone has laid a brick might mean that a building was underconstruction. Subsequent to that, the piece of land might have comeinto common use. How does one overcome that dichotomy? The originalpermission might have been granted but the present use is as a villagegreen or as a piece of common land. Who can resolve that issue and howcan that be done?

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

As I said in response to the hon. Member forSouth-East Cambridgeshire, any particular case would be a matter forinterpretation of all the factors and the evidence. One would hope thatthe registration authority and any other body, if the matter werereferred elsewhere—ultimately these things are challengeable byjudicial review—would examine the facts and the evidence in theparticular case. If the view was that planning consent had been givenbut had effectively lapsed and instead the land was then used as agreen, perhaps it would approve the application. The amendment that weare discussing could therefore be put to one side. Such a decisionwould be made on the basis of the facts and the evidence in thecase.

Prior to thatflurry of debate and interest, I was detailing the Governmentamendments. To give effect to the principle that we have justdiscussed, we have restructured the clause slightly. We think that isworth doing, even though it requires six amendments. Essentially, theexisting subsection (3) would deal with cases where use “as ofright” is ended after commencement of the clause, whereasproposed new subsection (3A), introduced by amendment No. 4, deals withcases where such use had already ended before commencement. I can gothrough that in more detail should hon. Members wish me to do so, but I hope that my comments have proved sufficient. The remaining amendmentsare consequential on the restructuring we have done, and have no widereffect on the outcome.

Amendment No. 43, tabled by thehon. Member for South-East Cambridgeshire, would omit subsection(5)(b), which says that where there has been 20 years’recreational use of land as of right by local people, the subsequentgranting of permission for them to use the land does not end thequalifying use. I cannot accept the amendment, because it is based on apresumption that we believe to be wrong, which is that the owner of anarea of land that has had that kind of long-standing pattern of use“as of right” should be able to remove the registrabilityas a green by, for example, putting up a welcoming sign on the land.That kind of action does not put the local inhabitants on notice thattheir future ability to use the land is underthreat.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

Obviously, I have not reached the point with myargument yet. I am afraid that even with the subsequent groups ofamendments there will be some crossover in this debate. The Ministerused a word that is not in the clause. He referred to situations wherethe landowner “subsequently” does something to grantpermission. That is not referred to in subsection (5)(b); there is nosuggestion that it was subsequent to theright.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

The course of events—the sequence—isvariable. My reading of things is that we must account for subsequentaction. Does that help the hon. Gentleman.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I am grateful to the Minister. No, it does notreally, because the point I am making now and in amendment No. 47 isthat when the owner may have consistently given consent, on theunderstanding that it was not giving rise to permanent rights, it isunreasonable, and contrary to human rights, that that owner’sinterests should be taken away.

I agree entirely with the hon.Gentleman’s response to my amendment, which is that someoneshould not be able to plonk up a sign after 19 and a half years andsay, “I have let you have it out of the goodness of my heart forall this time, but now you cannot have it as a village green.”Of course that would be an abuse. However, the provision is actuallyremoving retrospectively something that may have been permissive allthe waythrough.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I am grateful to the hon. Gentleman for hiscomments. It may be helpful if I listen to his argument in favour ofthe amendment and then I may have the opportunity to address mattersmore fully. Amendments Nos. 44 and 45 were also tabled by the hon.Gentleman. In a situation where 20 years' qualifying use of land has been ended, for example, by excluding people, clause 15 allows a period of grace during which application may be made to register the land as a green. A period is normally two years, but is to be five years in a case where qualifying use ends  before the clause takes effect. Those two amendments, taken together,seek to replace the two periods with a single period of grace of oneyear in all cases.

The Government resist theprinciple of shortening the period of grace because, if long-standinguse is ended, there needs to be a fair opportunity for application.There is much to do before a viable case for registration can be made,as my hon. Friend the Member for Pudsey (Mr. Truswell) outlined duringour debate on Second Reading.

Local people have to find outthat that area of law exists. It is not everyday knowledge that it doesexist. They must then get hold of the guidance material and assesswhether their circumstances are likely to meet the stringent criteriafor registration. If so, they must find a range of witnesses to thequalifying use of the land and collect all of their detailedstatements. They must then bring the statements and supportinginformation together in the prescribed form in a proper application tothe authority.

Peoplelead busy lives. They are usually doing the work in their spare time oron a voluntary basis. They can not just drop everything and concentrateon getting their local green registered. In addition, under thecustomary law, any freestanding period of use would potentially havebeen enough to get land recognised as a green, even if there had been asubstantial interruption to use since. Clause 15 tightens that upconsiderably so that there will only be a limited window for localpeople to act before it is too late to register the land. However, Ifeel that we have gone as far as we intend to go, and as is reasonable,in imposing such alimitation.

Anne Begg (Aberdeen South, Labour)

It would be useful now to discuss the remainingamendments to the clause. Therefore, it is convenient to take also thefollowing amendments: No. 42, in clause 15, page 7, line 24, at endinsert—

‘( ) subsection (1)does not apply to land for which atcommencement—

(a)planning consent has been granted,or

(b) an application forregistration as a town or village green has been refused within aperiod of fiveyears.'.

No.46, in clause 15, page 8, line 14, at endinsert—

‘( ) before agreeingto register any land the registration authority must take reasonablesteps to inform the owner of any part of the land and consider whetherthe owner(s) has taken reasonable steps to prevent the land being usedas described in subsections (2) and(3).'.

No.47, in clause 15, page 8, line 14, at endinsert—

‘( ) beforeregistration of any land the registration authority must considerwhether the owner(s) of that land shall be able to show that the usersof the land were informed throughout the period that consent to suchuse was temporary and would not give rise to permanentrights.'.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

That is a wise decision, Miss Begg. It means thatall the remaining amendments stand in my name. Clause 15 is probablythe most controversial aspect of the Bill. Obviously I, as did theMinister, listened to the debate on Second Reading. I will give way ifthe hon. Member for Pudsey thinks that I am misrepresenting him, but hewas using the debate as the last opportunity—the fall-backposition—to prevent a  piece of land from possibly being used for development if people hadbeen using it to exercise their “lawful sports andpastimes”, which is a funny choice ofwords.

Most of usaccept and agree that there are lots of pieces of land that, asregistered village greens, would be a huge addition to the community.Therefore, we wholly support the principle of being able to registernew land as a village green. Nevertheless, as Members of this House, wemust find the right balance between the rights and needs of society andof the owner. It would be easy to couch this debate in terms of a localcommunity against some rapacious developer. I do not doubt that thereare examples of rapacious developers who have sought to build on whatmost people would consider to be a village green. However, there willbe many more examples in which the land is not owned by a rapaciousdeveloper, but by, for example, a small village builder or an elderlylady who has left it there for years thinking that it would be a placefor her son or grandson to build a house.

There are all sorts ofpermutations and possibilities for the type of the land that we aredebating. It would be regrettable if we couched the debate purely interms of large-scale development.

Paul Truswell (Pudsey, Labour)

I have listened with interest to the hon.Gentleman’s comments following his reference to my contributionon Second Reading, and I take exception to his use of the term“fall-back position”. On Second Reading, I explained thecircumstances around Yeadon Banks. Local people had used the land inquestion for generations. It had been green belt land, ceased to be asresult of the unitary development plan process and the public inquiry,and therefore the local community felt that the planning process hadfailed to help them retain that piece of land. When they discoveredthat they could apply for town green registration, they started thatprocess. So it was not really a fall-back position, but an attempt toprotect land that had been used forgenerations.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I am happy to accept the hon. Gentleman’scorrection of my understanding of his words. Clearly, I do not haveknowledge of his particular constituency case, and nor shouldI.

My general pointremains: there is a whole raft of possible scenarios for the type ofland to which we are referring, and we must not carry out this debateon the basis of one particular perception. We have a responsibilitytherefore to find a balance between those rights and needs of societyand a community, and the owner of the land—whoever he, she or itmight be.

I readilyaccept that the amendments are designed to tilt the balance backtowards the landowner slightly—although not excessively. I amsorry that the Minister concluded his opening speech by saying,“That is as far as we intend to go.” Perhaps that is hismarker, but I hope that he will listen to and consider mypoints.

AmendmentsNos. 44 and 45 address the period in which an application can be made.In fact, amendment No. 44 will fall, given that we are likely toapprove the Minister’s amendment No. 6 which deletes the wholeof subsection (6). He has achieved what I tried to do with amendmentNo. 44, although he has reintroduced the  five years provision in amendment No. 4. I must challenge that. Fiveyears is a very long time, and if the public, or“inhabitants”—the word used in theBill—have been using land as of right for 20 years, it isastonishing that that use may stop five years before completion of anapplication.

Actually, I do not agree withthe Minister’s pleadings that two years is necessary for anyother case. A year is still a long time, and if people feel stronglyabout the need to protect their land, one year is a more than adequateperiod in which to complete the application with all the relevantdetails—I think that the Minister rather over-laboured theproblems with getting that information in place. I challenge himparticularly on the five years. If people ceased using land five yearsago, I cannot for the life of me understand why they should then havethe whole of the five years to put in the application. I cannot see thejustification in such action, nor can I even envisage an appropriateexample.

I shall moveon now, Miss Begg, to the other amendments that you rightly suggestedwe should also debate. Amendment No. 42 goes back to the discussionthat began with a series of interventions on the Minister’sspeech. I welcome the Government’s amendments which, as theMinister rightly said, were tabled in response to issues raised by mynoble Friends in the other place. I am also grateful for his coming upwith the principle of proposed subsection(3A).

When answeringthe question about a definition of a building, the Minister said that,if it meant only that the odd ditch or two had been dug, that might notapply. It certainly would not apply to other properties on thedevelopment that had not been commenced. I am grateful to see theMinister nodding. Some examples of developments being under way havebeen drawn to my attention. As he knows, a development is, to use anold-fashioned Labour word, a composite. Its infrastructure is the roadsand utilities. It is integrated. If we then say to the developer thatthat section cannot now be built, it will throw the rest out ofproportion. It means that the roads are in the wrong place and the costof the infrastructure that the developer will have planned to shareacross all the properties will have to be shared among the fewerproperties that can be built or have been completed. There might not beany properties. Therefore, the Minister is wrong to suggest that thebuilding has to be well under construction before the clause ceases toapply. He should go back a stage ortwo.

The other matteris cost. Again, examples have been drawn to my attention. For obviousreasons, the individuals concerned do not want me to announce who theyare because they are carrying out developments at present. Manyhundreds—if not millions—of pounds have been spent bybusinesses and local authorities on public inquiries. In some cases,development has commenced but not completed, yet the Minister isproposing that all that money could be lost at huge cost to thebusinesses because someone might apply for a village green. In fact, inone case a person did apply for a village green under the currentlegislation. The application was lost. The matter then went to publicinquiry. The developers won planning consent and they are two thirds ofthe way through the development. They will lose the other third on the  basis of the discussion that we have just had. Although I cannot speakfor them, there is likely to be a law suit against the Government inrespect of the costs that have beenincurred.

Despite hisclosing remarks, the Minister needs to consider matters further. Wemust bear in mind a major planning proposal, especially when a grouphas already applied for registration as a town or village green thathas been refused within a recent time. In amendment No. 42, I used thesame five-year period that the Minister used and I am happy to reduceit to a much lesser period if he will do so under his amendment. Heneeds to think more about the balance between the two situations,especially given that there could be major legal disputes andchallenges against the Government if they continue acting as they havebeendoing.

I would alsomake the smaller point that often a development is about not justhousing but community services. There may even be—althoughprobably not that often—a new post office, or certainly acommunity centre. It would be pretty ironic if the community centre wasnot allowed to be built because it happened to be the last thing on thedevelopment schedule to be built. The houses would be put up, but notthe community centre that was part of the development, and so, becauseof the Bill, the community would lose out on its community centre. TheMinister needs to take the provision away and look at it a little morecarefully.

I come toamendments Nos. 46 and 47. I shall refer to notes that I expect otherhon. Members have also received from the Country Land and BusinessAssociation. It refers to the common land policy statement that theGovernment issued in 2002, in which they proposed

“introducing a formal mechanism bywhich landowners could clearly indicate that, although use of the landmay continue for the time being, the nature of the use has ceased tomeet the criteria for registration as a town or village green. Anyfurther use would be by general permission of the owner. There wassupport for providing a clear and unambiguous mechanism for making thepublic aware of their position and we plan to do so. This will requireprimarylegislation.”

Unfortunately,that has not found its way into the Bill, but it is the genesis ofamendments Nos. 46 and 47. Both of them simply require the registrationauthority to consider two possible actions that the owner of the landmay have taken before the authority agrees to register. The first istaking action to prevent the land from being used by putting up somesort of fencing or security system. To come back to the point that theMinister made about amendment No. 43, I certainly agree that the ownershould not be allowed suddenly to come along, 19 and a half years afterthe public started using a piece of land for lawful pursuits, and stopthat use, and expect to evade the requirements of clause 15.

However, on amendmentNo. 47, what if someone has a piece of land and expects, or is happyfor, people to walk across it, walk their dogs on it or play ball onit, but wants to retain their interest in the property? Of course, onceit becomes a village green it is effectively of no value to theowner.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

To help the debate, in respect of amendment No. 43, the supplementary words are significant. Subsection (5)(b), which the hon. Gentleman seeks to remove, applies only when subsection (2)(a) applies—that is, after 20 years have passed. With the leave of the Committee, I will respond to the other amendments later, including No. 47. But I hope that my interpretation of amendment No. 43 is helpful.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I am grateful to the Minister. Perhaps while he is replying to the other amendments, I will have a think about that reply. He is right that we need our debates to be as constructive as possible.

I stress that under amendment No. 47 I am referring to cases in which the users of the land were informed throughout the period that consent to such use was temporary and would not give rise to permanent rights. Arguably, it would be difficult for someone to demonstrate or prove that; nevertheless, the owner should have the right to do so. Equally, on amendment No. 46, if the owner has taken serious steps—I am not talking about just a piece of string—to prevent the land from being used as described, that should be taken into account. If the owner has erected sensible fencing and people have consistently broken it down so as to get on to a piece of ground to walk their dogs, I wonder whether they should have their property confiscated. That is what the impact of clause 15might be.

I am sorry to have taken some time over this group of amendments, but I think that it was right to discuss them all together. I seek, through a variety of propositions, to shift the balance slightly back towards the genuine landowner, who could be of any type, and to introduce a little more proportionality into the idea of the creation of village greens. If land has been used for 20 years without let or hindrance or the owner’s trying to stop that use, I entirely support what the Minister is trying to do. We want more village greens, but we also support the general principle of property ownership: the owner has a right to protect his property and the rights that accrue to him from it. At the moment, the clause tilts the balance rather too far away from that. I hope that the Minister will consider our points seriously. While he responds, I shall think further about his point on amendment No. 43.

Tom Levitt (PPS (Rt Hon Hilary Benn, Secretary of State), Department for International Development; High Peak, Labour)

Like other Committee members, I am pleased to serve under your chairmanship, Miss Begg. The last time that I scrutinised legislation line by line in a Committee, I was sitting beside you on the pre-legislative scrutiny Committee for the Disability Discrimination Bill. You showed a lot of common sense then, and “commons sense” is clearly what we all require today. I cannot let the moment pass without pointing out that this week marks the 74th anniversary of the Kinder trespass—a wonderful moment in the history of this country, and of my constituency in particular. In that spirit, I am very much in favour of the Bill and its measures. I also have some sympathy for the points made by the hon. Member for South-East Cambridgeshire, although I put the problem down to inadequate guidance rather than to a need to amend the Bill in the way that he advocates.

Having said that, I should like to take the opportunity to question the Minister about a situation that has arisen in my constituency. As I mentioned in an intervention on the Minister for Climate Change and the Environment on Second Reading, there have been two instances in which I believe that the town green applications have been misguided and unhelpful for the common good of the community. The first was in an area in Buxton called Fairfield where planning permission has been given for some 300 houses, including a significant proportion of much-needed social housing, on a large piece of land adjacent to a huge and well established common. I stress that the application is not for land that is or ever has been regarded as common land, but access to the new site is across a smaller piece of land for which a town green application has been submitted. That application was submitted after the planning permission was given. As a result, because of unresolved cases going through the courts, the decision as to whether the town green application should be granted has been delayed by several years—even the main campaigner for the town green no longer lives in the area, so presumably no longer has an interest. Everything is waiting for court cases to be decided elsewhere.

The second instance is in New Mills where, the Minister will not be surprised to hear, a derelict Methodist church and its graveyard, along with a small piece of adjacent land owned by the town council, has been designated as the site of a new magistrates court to serve the whole of the High Peak. It is a facility that is badly needed; we have inadequate magistrates court facilities. Although the planning application was initially refused by High Peak borough council, it went to appeal and public inquiry and was granted to Derbyshire courts on appeal—from memory, about three years ago. Immediately after the appeal had been granted and the planning permission was given, a town green application was made on a small part of the site that was, nevertheless, crucial in giving access to where the magistrates court was going to be situated. That piece of land is in an entirely urban residential area. From recollection, it is roughly the size of this room, but it has held up major public works for several years. At one point, a public inquiry was established by the county council for a hearing into the town green application. That public inquiry was cancelled on legal advice, at a cost to the taxpayer, because of the outstanding cases going through the courts in relation to other town green applications elsewhere.

I consider that both town green applications were made not on the merits of the land in question, or for the purpose of enhancing the environment or retaining rights of common usage, but to frustrate planning permissions. In one case, since April 2005, the applicant is no longer Derbyshire courts but the Department for Constitutional Affairs, which now has direct responsibility for the provision of magistrates courts.

All those delays are at a great cost to the taxpayer and we cannot see, at the moment, how or when these matters will be resolved, because every time that a case comes up, another one follows it through. The problem is the paucity of the guidance that is given. The courts are simply deciding a succession of case law each time and, because of an inadequate guidance framework,  new case law leads to future guidance changes, which means that the authorities making the decisions on whether to grant a town green application are on shifting sands and can never be really sure of their ground.

I have written to the Department following my intervention on Second Reading last week and I await the full, detailed responses. I hope that the Minister and the Committee agree that town green applications should normally be made before planning permission is given, that applications designed principally to thwart the legitimate planning process should get short shrift and that the use of repeated town green applications for the same land should not be allowed to cause inordinate delays to the development process.

How does the Minister see the contents of the Bill—or the Act, when it becomes enacted—affecting outstanding town green applications that have not yet been decided on? Would those become subject to the Bill?

It is a matter of strengthening guidance, rather than changing the Bill. I am happy to go along with the Government amendments and pleased and proud to support the Bill. However, where cases arise that are tantamount to abuse of the system—as I think is so in two instances in High Peak—I hope that they can be addressed through firmer guidance.

Philip Dunne (Ludlow, Conservative)

Thank you, Miss Begg, for calling me. I should like to endorse the comments of other Committee members: it is a pleasure to serve under your chairmanship.

I support the amendments tabled by my hon. Friend the Member for South-East Cambridgeshire. I remind the Committee of my declaration of interests, which I identified on Second Reading, in relation to some grazing rights and modest ownership rights in common land.

I should like to draw the Minister’s attention to two areas of conflict, which may arise if we do not take into account the amendments tabled by my hon. Friend. One relates to the Highways Act 1980 provisions that I referred to on Second Reading, which provide protections for landowners to give rights of way over their property, although those are not permanently enshrined. Section 31 of that Act allows a landowner to give notice that it is not his or her intention that land should become permanently dedicated as a right of way.

A similar provision ought to apply to a green to which a landowner gives permissive access. The two approaches will be inconsistent if the Bill is more prescriptive than the 1980 Act. The Minister might argue that we should change the 1980 Act. That will be for him to say, but I do not favour it.

Part of my concern arises from the length of time involved and the retrospective nature of the proposals. On Second Reading, I raised an example from my constituency in which some Glebe land owned by the Church had been used for pastimes such as leisure pursuits and dog-walking for much longer than 20 years. If the landowner does not wish their land to be registered, it will in effect be confiscated as a result of  the provisions unless we pass the amendments, and I am not sure that it is the Bill’s intention to disfranchise that kind of owner in such circumstances.

A related point concerns Human Rights Act 1998 implications. A particular case was brought to my attention by one of my constituents. The Bill, if not amended, could fall foul for not being compatible with the Human Rights Act, particularly article 1, protocol 1 on the protection of property. The disproportionate limitation of property rights has no viable means of protecting the right to freely enjoy possession. The case that my constituent highlighted was JA Pye (Oxford) Ltd v. United Kingdom 2005. I can give the Minister the reference number if he needs to look it up. I should be interested to know whether he has considered the Bill’s Human Rights Act implications for landowners. He might like to comment on that before the question is put.

David Drew (Stroud, Labour)

I shall ask the Minister a number of questions. During debate in the other place, a considerable amount of time was spent on the matter that we are discussing. I agree with the hon. Member for South-East Cambridgeshire that it is at the centre of the Bill. Hon. Members in the other place were trying to define the term “public interest”. Having read that debate and heard what the Minister said subsequently on Second Reading here, I am still not sure whether we have managed to clarify exactly what we mean by the public interest. It is crucial to the maintenance and enhancement of common land and village greens in particular.

I take note of what other hon. Members said about curtilage in their interventions. Given that we are all awaiting with bated breath the verdict in the Oxfordshire Trap Grounds case, I am concerned that we could make the situation more confusing if we are not careful. We might even be making it more restrictive for those who, like myself, want common land, access and proper use of land to be restored. If we are not careful, we could make it worse.

I ask my hon. Friend the Minister: having obtained some more balance in the legislative framework than was originally proposed, why does he feel duty bound to delete subsection (6) in particular? I disagree with the hon. Member for South-East Cambridgeshire on the time scale. We need proper safeguards. By altering the time when an application can be made where there has been a lack of use and changing the definition of the relevant period, we seem to be erring in favour of those who wish to redefine and reuse the land. I accept that this issue will always be problematic, because we run directly into the planning process as against the nature of what I see as public land that should be protected as such, but I am not sure whether my hon. Friend is not making it more difficult for people who wish, as my hon. Friend the Member for Pudsey described, to make a genuine application.

The problem is the abuses that we all know about. As my hon. Friend the Member for High Peak said, applications can be used as an opportunity to forestall what seems to be the best use of the land. However, we have to be careful—obviously, this clause will be considered carefully, linking directly with the next clause; I am sure that my hon. Friend the Member for Sherwood and I will have things to say about  that—when people are trying to change the use of public land. Sometimes that is for a good purpose, such as my hon. Friend the Member for High Peak described, but we must be careful that the safeguards are not being eroded.

That is why I ask why the Government are taking out clause 15(6) and, with regard to the Minister’s earlier responses on how the curtilage of a building affects common land and, in particular, the designation of a village green, why what the Government now propose seems less strong than what was originally in place when the Bill came from the other place.

Daniel Rogerson (Shadow Minister, Office of the Deputy Prime Minister; North Cornwall, Liberal Democrat)

I am, to a great extent, convinced by the arguments advanced by the hon. Member for Stroud about not seeking to be obstructive to attempts to preserve rights of access to open spaces and common land. I have specifically used the phrase “open spaces”. I suspect that the hon. Gentleman, like me and other hon. Members, has received information from the Open Spaces Society. The hon. Member for South-East Cambridgeshire referred to valuable briefings from the Country Land and Business Association. As always, there are many sides to the various discussions, so it has been useful to read the submissions given to us.

The Minister referred to the capacity of volunteer organisations to take advantage of the provision made by the Bill to apply to register greens. We need to preserve that facility for such organisations. The maximum time should be given to allow such applications to be made and to move forward.

With regard to applications that have failed, the hon. Member for South-East Cambridgeshire was keen to say that further applications could not be made within a specified period. Again, I am sure that volunteer organisations will make every effort to get applications right the first time around, but it is important that if an application fails on a technicality, they should have the right to submit a further application, having reflected on that.

We are considering Government amendments and amendments tabled by the hon. Member for South-East Cambridgeshire. His amendments Nos. 46 and 47 relate to attempts by landowners to make it clear that any rights being given are temporary, or rather that any access given is temporary. I am more sympathetic to that. It is clear that in respect of an event possibly taking place or a community activity occurring in a village or town, this could act as a great disincentive to people allowing that to happen on their land. It is important that we take on board the provisions in amendments Nos. 46 and 47 to allow landowners the opportunity to demonstrate that they have allowed these permissions on a temporary basis.

Amendments Nos. 46 and 47 are sensible, but I am less sympathetic to the Government’s amendments to the clause, and to amendment No. 42.

Paul Truswell (Pudsey, Labour)

I want to speak on this clause not only because, as I made clear on Second Reading, I have a particular constituency interest, but because I have observed the process that my constituents have had to go through in some detail. I caution Committee members against the comments of the hon. Member  for South-East Cambridgeshire—and also, I have to say, of my hon. Friend the Member for High Peak—in respect of adopting a lowest common denominator approach that aims to prevent the few cases of abuse, but at the same time throws the baby out with the bathwater in terms of the many legitimate applications that have been made—some of which are in abeyance—and that I am sure will be made in the future.

Part of the problem is that the hon. Member for South-East Cambridgeshire predicates his view and approach on the belief that the process is now loaded against the landowner. My experience is that putting in a town or village green application is an extremely difficult and complex process. My hon. Friend the Minister alluded to some of the components of that.

The idea of not being allowed to submit an application within five years of an unsuccessful application should be fiercely resisted. As was recently alluded to, because this is a complex process that is undertaken by what are essentially volunteers from within the community, it is quite possible that they will get it wrong. Indeed, I suspect that some of the applications submitted in order to thwart planning applications might not be fully considered—might not be submitted in the most cogent way possible—and that they may fail because of that.

We obviously have a problem with Trap Grounds. Some applications have probably failed. I do not know what records have been kept throughout the country on how many applications have been heard and automatically rejected because of Trap Grounds. I know that many local authorities, including Leeds city council in my area, have tried to defer consideration of these applications. The application in respect of Yeadon Banks in my constituency was submitted in July 2004; clearly, some time has elapsed since then, because of Trap Grounds.

I agree with the comments of my hon. Friendthe Member for Stroud about the deletion of subsection (6). I support him in pressing the Minister for clarification on that. We do not want a situation to arise whereby some of the applications—

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

If it will help my hon. Friend, let me say that the provisions of subsection (6) are simply re-enacted by subsections “(3) or (3A)” as referred to in one of my amendments. They are all still included. This is just a case of what I referred to in my opening remarks as reordering everything to make better sense. I hope that the fact that those provisions are all still included reassures my hon. Friend, and helps to move the debate forward.

Paul Truswell (Pudsey, Labour)

I am grateful for those comments.

Further to amendment No. 42 and the suggestion that the existence of a substantive planning permission should be an obstacle to the further progress of a town green application, I suggest that the two processes are entirely separate. Again, I can cite my own parochial example; the planning process has not been particularly helpful in protecting an area of land that has been in public use for generations and, certainly on a prima facie basis, meets all the tests that in due  course it will have to satisfy, when and if the local authority gets round to determining things, in the context either of the Bill or of the decision on Trap Grounds.

The idea that we are dealing with landowners with limited resources is not the point that we should examine. We should defend the town green process and, if anything, make it far easier. As my hon. Friend the Member for Stroud indicated, the application in my constituency has been a lengthy process. Advice has had to be sought and people have had to mull over complex and arcane legal commentaries. There has been a need to raise awareness within the local community, organise public meetings and establish a committee to carry out the application process. People have gone round to try to get sufficient statements of evidence to demonstrate that the town green application meets the requirements.

That process is one of the reasons why I hope that the Committee will resist amendment No. 45. In my experience, reducing the period available to undertake such a convoluted process would be an obstacle to some communities. As my hon. Friend said, we are talking about volunteers in the community who have other lives.

I would caricature the application process as being a little like getting a complex piece of do-it-yourself furniture and having to piece it together in some sort of treasure hunt, only to discover that some essential pieces are missing. I counsel Members who are persuaded or influenced by comments made from the Opposition Front Bench and by my hon. Friend the Member for High Peak not to throw the baby out with the bathwater and make the process more restrictive.

My experience shows that the vast majority of people do not know what a town green is. I am sure that many communities have town or village greens but do not realise that they might be able to achieve that legislative and formal status until a planning application or unitary development plan demonstrates that the land is not as sacrosanct as they had hoped.

Paddy Tipping (PPS (Rt Hon Jack Straw, Secretary of State), Foreign & Commonwealth Office; Sherwood, Labour)

This has been an important debate with historical relevance in this place. There has always been an argument between those who believe in the rights of the private owner and those who favour the wider, informal rights of the public good. If one were to look at the records of Parliament, one would see that that has been debated strongly many times.

The hon. Member for South-East Cambridgeshire, with whom I agree on many issues, made thecase, supported by the hon. Member for Ludlow(Mr. Dunne), for the primacy of the right of private ownership. However, the world has changed. The importance of the wider public good and the right of public participation has increased, and that trend will continue. My hon. Friend the Member for High Peak talked about the Kinder Scout trespass, and one of this Government’s monumental achievements has been the Countryside and Rights of Way Act 2000, creating the right of wider access to wild and open spaces. My hon. Friend the Minister and his officials have worked hard to balance that wider public right against that of  private ownership. He listened to the debate in the other place and has tabled amendments that recognise some of the concerns expressed by the hon. Member for South-East Cambridgeshire.

Some of us feel that the powers of the Bill do not go far enough in looking after the public good and the right of wider informal use of land. The Minister and his officials have listened to the debate and tried to find a balance, and I urge him not to go any further. Having watched the progress of the Bill, I have seen movement towards the rights of private ownership. I counsel him to maintain his present position and not to give further ground, because informal areas that have acquired a tradition of usage over many years are important for the community at large and should not be given away in the manner that is being asked today. The balance is right and we should stick with it, because—in the old phrase—this land is ours.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

Those Members who were on the Standing Committee of the Natural Environment and Rural Communities Bill will remember that I always took seriously the words of counsel from my hon. Friend the Member for Sherwood, and I see no reason to deviate from that course now. The debate has been useful and I shall try to address the points that have been made as best I can. If I fail in one or two cases I shall write to Members accordingly.

The hon. Member for South-East Cambridgeshire raised a question about the five-year grace period from commencement for cases in which access to a green was ceased prior to commencement. My hon. Friend the Member for Pudsey made a strong and passionate case for a sensible grace period. The five-year period applies when use as of right has ceased, and I think that five years is appropriate to allow a catch-up.

The hon. Member for South-East Cambridgeshire also talked about development and made some interesting points about larger developments and about community developments that may be happening, which may be frustrated by the April date of a week ago. I shall reflect on what he says, but I ask him also to reflect on the fact that clause 15 re-enacts, with some modifications, the existing regime for registering land that has had 20 years’ recreational use as of right by local people. It reflects the customary law position in which any free-standing period of that kind gave rise to a presumption that land was a green, even if it had occurred many years earlier. The element of risk that the developer undertakes, therefore, has in many respects not changed and will not do so by virtue of the amendment. If the development of a community centre that is wanted by the whole community is affected then obviously there is capacity for exchange in order to allow that, although it may not be entirely to the satisfaction of the hon. Gentleman.

On amendment No. 42, determination of a planning application turns essentially on policy considerations. A committee of local politicians decides, in light of national and local guidelines, whether to allow a development to proceed, and it is well established that any consent that it gives is without prejudice to other constraints that may affect the use of the same land, such as the existence of prior rights over the land that  may make the development unlawful. I recognise, of course, that some particularly difficult and emotive situations can arise locally in cases when, after the giving of planning consent, there is an application to register the same land as a green—my hon. Friend the Member for High Peak has explained that.

Ultimately, determination of an application to register land as a town or village green is a legal, rather than a policy matter. The sole issue is whether the qualifying recreational use by local people has occurred. The tests are tough, but if the local inhabitants can meet them, they prove that the land is a green and should be registered as such. It would be wholly inappropriate for the Bill to treat a planning consent as overriding the scope for such registrations.

On the second point in the amendment, the Government do not agree that registration should not be possible if an application to register the land was refused in the five years before the commencement of clause 15. As Committee members know, the Court of Appeal decision in the Trap Grounds case that we have discussed has for some time effectively prevented registration of greens, even in the most deserving cases where it was clear that the qualifying use had taken place before application. I have no accurate figures of the numbers that have been affected, for which my hon. Friend the Member for Pudsey asked, although I have various other figures. I will not delay the Committee by running through the information that I have if it is not exactly what my hon. Friend wants.

It would be wrong for the Bill to treat determination in such circumstances as a definitive indication of the status of the land. On the other hand, if an application was without any substance when determined before, as perhaps might be the case in High Peak, it would remain without any substance if remade under clause 15. Indeed, depending on the circumstances, it might not even be possible for the authority to entertain it again if nothing has changed and the application remains as hopeless as ever. I will want to reflect on the guidance, as my hon. Friend the Member for High Peak said. It is true that case law has been evolving rapidly in recent years; we hope that the outcome in the Trap Grounds case and the passage of the Bill will make the criteria clearer for all.

The Open Spaces Society has issued comprehensive guidance on the subject, entitled “Getting Greens Registered”. We will need to speak to the society and others about how updated guidance on these matters should best be provided. If my hon. Friend wants to write to me I shall be happy to discuss his ideas and the problems in his constituency, given his generally progressive attitude to town and village greens.

Tom Levitt (PPS (Rt Hon Hilary Benn, Secretary of State), Department for International Development; High Peak, Labour)

I am grateful to my hon. Friend. One of the problems of the guidance versus case law issue is that case law takes so long. The delay in waiting for case law to be decided means that the town green applications cannot be processed with the speed that anyone would want without the need for rushing. Does the Minister think that the net effect of the Bill—a swing towards guidance rather than case law—would reduce the present unnecessary waste of time between the application and the decision in some cases?

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

I certainly hope that developing the expertise of commons registration officers and  authorities will make things easier. The Bill is a tidying-up process that largely repeats the 1965 Act. If I can further streamline things through guidance I will do so and perhaps we can discuss it.

In respect of amendments Nos. 46 and 47, the first proposed requirement of notifying the owner is a matter for regulations under clause 24, which we will develop and consult on in due course. The current regulations require the authority to notify the owner where known, to advertise the application and to place a notice on the land. We would expect the new regulations to contain something comparable.

The second and third proposed requirements—to consider whether the owner has taken reasonable steps to prevent qualifying use by local inhabitants and to consider whether the owner can show that users were informed throughout the relevant period that consent to such use was temporary and not intended to lead to permanent rights—are simply elements of what, by definition, the authority must do when it is considering whether the use as of right by local inhabitants has occurred for at least 20 years. Use as of right is without permission or secrecy. If the owner can show that he prevented the use or that he informed users throughout that their use was permissive, the application must fail.

On the basis that the amendments are unnecessary, I ask the hon. Member for South-East Cambridgeshire to ask leave to withdraw them.

The hon. Member for Ludlow asked a couple of questions to which I shall respond. In respect of section 31 of the Highways Act 1980, we concluded that it was unnecessary, and would not always be appropriate, to introduce the possibility for a landowner to declare that recreational use of his land is not as of right. A landowner who wants to continue to allow local people to use the land simply needs to communicate his permission clearly to them—for example, by putting prominent notices on the land which he maintains or periodically renews. The difficulty with substituting a paper procedure is that people may be unaware that their use of the land as of right is challenged. That is unsatisfactory when 20 years’ use as of right has already taken place and it is important for any challenge to as-of-right use to be overt so that people recognise it as such and, if appropriate, take action to secure registration of the land before the two-year period of grace elapses.

For that reason, clause 15 does not treat the mere giving of permission as enough to end as-of-right use. It would be unfair if an apparently welcoming action taken after a long period of as-of-right use were able to cancel out long-established as-of-right use in that way and thereby prevent registration of the land.

Incidentally, although I cannot comment on specific cases, I do not believe that a provision similar to section 31(6) of the Highways Act 1980 would be of any assistance when 20 years’ use had already accumulated because that section can be used to prevent the presumed dedication of rights of way only when 20 years’ use has not already taken place.

I shall write to the hon. Member for Ludlow about the Glebe land that he referred to.

In respect of applications to register land as a green infringing the owner’s human rights, we do not accept that that is so, but the Judicial Committee of the other place is considering that issue in the Trap Grounds case.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

On a point of order, Miss Begg. As we have changed the structure of the debate, will I have another opportunity to speak?

Anne Begg (Aberdeen South, Labour)

I was going to offer you that opportunity.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

Thank you, Miss Begg. In that case I do not need to intervene on the Minister.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

As we have had a thorough debate, I hope that it will be taken as a stand part debate.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I appreciate your tolerance, Miss Begg.

I am grateful for various things that the Minister said. Starting at the end, he talked about amendments Nos. 46 and 47 and I am grateful for his explanation that owners will be notified and that whether an owner has sought to prevent or has given permission would both nullify the as-of-right clause. I confess that I was not aware of that definition of “as of right”, so I accept that the amendments are unnecessary, but the points are important and it is worth having them on the record.

On the earlier amendments and planning consent, I confess that I am still slightly concerned about the Minister’s response. I appreciate the technical distinction between a judgment on policy and a judgment on law, but the Government will have a serious problem with the present situation. The Minister kindly said that he would reflect on the matter, but he may want to reflect on the developments that will be hit by the measure now and he might want to consider an amendment to exempt those on which construction is already in process.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

If the hon. Gentleman is aware of any such circumstances or any are made known to him and he communicates them to me, that would help me when considering the matter.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I am grateful to the Minister and I will certainly try to do that, with the agreement of those who approach me.

The Minister said that much of the provision is just re-enshrining previous legislation, but there are some twists that change it slightly and it is important that people who will be caught by the measure should be exempted. It is fair enough that anyone who applies for planning consent in future should be covered by the legislation and I accept the Minister’s point, but those who have already received it and believe that everything is going forward need an opportunity to make representations.

I heard what the Minister and other hon. Members said about the period of one to five years, but I still think that people could go a bit quicker than has been  suggested, although I have not considered the Trap Grounds issue, which I accept as a reason for needing a fair period.

Unusually, I found myself at odds with the hon. Member for Sherwood, although that will not surprise him. I fully recognise that the world has moved on. If he was implying that I was defending property rights as they might have existed 50 years ago, he is living in a different world. I certainly am not doing that, norwas I.

Paddy Tipping (PPS (Rt Hon Jack Straw, Secretary of State), Foreign & Commonwealth Office; Sherwood, Labour)

Some of the discussions reminded me of the debates about enclosures, so we are talking about centuries ago, not 50 years ago.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

I was not a Member of the House then, so I shall have to bow to the hon. Gentleman’s memory, although I think that he is straining the point. As I made clear at the outset of my remarks, I wholly support the principle of registering village greens. However, owners should not be caught unwittingly by the legislation, which could, in effect, nullify the value of an asset.

My only other point relates to the Minister’s intervention on me on amendment No. 43. He said that the fact that subsection (5)(b) depends on subsection (5)(a)—that is, the end of paragraph (a) ends with “and”—makes it subsequent. Having spent a few minutes reading the provisions, but like him not having a legal background, I am not entirely convinced that he is right. His assertion that subsection (5)(b) is dependent on subsection (5)(a) is of course correct, but subsection (5)(a) refers to prohibition under subsection (4), which refers to prohibition

“by reason of any enactment.”

Logically, therefore, subsection (5)(b) refers to prohibition by reason of an enactment.

My understanding of the Minister’s response to amendment No. 43 is that landowners who have previously done nothing should not suddenly be able to put up a welcome board to avoid registration. I entirely agree that that should not be permissible, but that is not how I read subsection (5), linking it to subsections (2) and (4). There is no reference to subsequent and the prohibition appears to refer only to an enactment. Unless I am wildly wrong, I do not think that an enactment means an action by a private individual.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

We might need to get our collective non-legal heads together and work out the wiring of the provisions. To go back through all the stages, subsection (4) says:

“In determining the period of 20 years”.

To my mind, that informs the subsequent nature of subsection (4). Subsection (5)(b) is free-standing from subsection (5)(a), but both are subject to the words

“in a case where the condition in subsection (2)(a) is satisfied”.

We could probably have this debate for some time and we might want to return to it on Report, but in the meantime we might want to have a chat and clarify it for ourselves.

James Paice (Shadow Minister (Agriculture & Rural Affairs), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)

That may well be necessary, especially as the Minister just said that subsection (5)(b) is free-standing from subsection (5)(a), whereas I thought that he told me earlier that it was dependent on paragraph (a), which indeed ends with the word “and”, which suggests that paragraph (b) is not free-standing. I am happy to have the discussion that the Minister suggests.

To conclude, I have attempted to remove too much of an element of retrospection. That is why I talked about planning consent, particularly involving developments that are already under way, and why I sought to remove subsection (5)(b), which strikes me as a retrospective provision. It seems odd that only a few months ago the Minister and I were debating retrospection about a different form of access. He was arguing against my case because it was retrospective, but today the boot is on the other foot. He is trying to do things retrospectively that I believe he should not.

We have had a good debate, and I am grateful to the Minister for his offer to reconsider certain aspects and explain others.