Clause16
Commons Bill [Lords]
4:00 pm
Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)
I recall that during debates on theNatural Environment and Rural Communities Bill the hon. Gentlemanpromised that I would be held in the highest esteem in respect of somerace between horses, men and all sorts of things—it got himnowhere theneither.
I listenedcarefully to my hon. Friends. I said that I always pay close attentionto my hon. Friend the Member for Sherwood (Paddy Tipping); I try to dothe same for my hon. Friend the Member for Stroud (Mr. Drew) as well,although sometimes he does not make that as easy. My hon. Friends makeimportant points and I support the intentions behind their amendments.
However, I shallresist the amendments. Clause 16 strikes the right balance forflexibility, and I shall take time to persuade my hon. Friends and thehon. Member for Brecon and Radnorshire (Mr. Williams) that we have gotit right. If the proposed release land has an area of more than 200 sqm, replacement land must be offered—no ifs or buts. That isclear. It would apply whenever release land had an area greater than,say, 20 m by 10 m. However, I know that my hon. Friends and the hon.Gentleman are concerned that small areas of land would be eaten away.They want to prevent nibbling, as my hon. Friend the Member for Stroudput it.
Could the status of smaller areas of land be swept away as unimportant? Far from it. Unless the applicant proposes replacement land, there is an absolute duty on the national authority, under subsection (7), to have particular regard to the extent to which the absence of replacement land would be prejudicial to any of the interests in the land. The authority must think about the property rights of the commoners or others, the interestsof the neighbourhood and the public interest in all senses of thephrase, including nature conservation, landscape conservation,protection of public rights of access and protection of archaeological remains or other historic features.
That list is prettyformidable. In the vast majority of cases, when the area of proposedrelease land is less than 200 sq m, replacement land of a comparablesize or quality will need to be provided if the proposal is to beapproved. A case of deregistration without exchange being approvedwould be truly exceptional, but we do not want to rule out thepossibility.
I shallgive an example. Suppose an area of common or green were landlocked byhouses and no land nearby could be used as replacement land. Let ussuppose that there was a proposal to take a very small proportion ofthe land to facilitate, shall we say, disabled access to some adjoiningcommunity facility, and that that proposal was supported overwhelminglyby local people because it really made sense. Although such a casewould be exceptional, we would not want it to be impossible for us toapprove that application because of what was instatute.
What of theother issues raised by the amendments? Should there be a requirement orstatutory expectation that replacement land should be at least as largeas the release land, or equally advantageous to the various users ofit? We do not think so, for the same reason. Of course, it would beexceptional for the replacement land to be smaller, but we do not wantto rule out the possibility altogether. Such a proposal could provide abetter deal for the commoners and the public. Perhaps the release landwould be inaccessible and remote, while the slightly smallerreplacement land was on people’s doorstep, but had not hithertobeen available to them. In such circumstances, we should not be forcedto turn down an application because ofstatutes.
We resistthe “equally advantageous” formulation simply because itcould well be interpreted as meaning that the replacement land had tobe equally advantageous in respect of every one of the interests setout in clause 16(6), which is a much extended list of the issues towhich the national authority must have regard when an exchange isproposed. Currently, the national authority is concerned only withwhether an exchange is fair to the private interests involved;subsection (6) would also include the public interest.
My hon. Friend the Member forStroud mentioned the Acquisition of Land Act 1981. He was right to saythat in the case he mentioned replacement land due to a compulsorypurchase order would have to be equally advantageous to any commoners,other legal right holders and the public. This is the closestcomparable example. However, the deregistration and exchange provisionsin clause 16 involve considering the impact of proposals on a far widerset of interests than even those in that legislation, includingthe
“interests of theneighbourhood...nature conservation...the conservation of thelandscape...the protection of public rights of access...andthe protection of archeological remains and features of historicinterest.”
There is adifference, and there would be a potential legal problem if we were toopen up the possibility that all those interests must be equally servedby the exchange land.