Baroness Hodgson of Abinger:

Moved by Baroness Hodgson of Abinger

227C: After Clause 106, insert the following new Clause—“Land purchasing: duty to declare other approaches to purchase or lease land(1) Any developer or company approaching a landowner to buy or lease land for the purpose of development must declare whether they are also approaching other owners of land in the vicinity to buy or lease land for the purpose of development.(2) The declaration required under subsection (1) must include whether the combined amount of land intended to be purchased or leased will be submitted for application as a nationally significant infrastructure project as set out in Part 3 of the Planning Act 2008.(3) In subsection (1), “in the vicinity” means any land immediately adjoining or within ten miles of the land intended to be leased or purchased.”Member’s explanatory statementThis Amendment seeks to ensure that any landowner being approached is aware of whether it is just their land that is the subject of purchase/leasing or whether there are others being approached so that the total sum of the land obtained may result in application for designation as a nationally significant infrastructure project.

My Lords, Amendment 227C in my name would insert a new Clause after Clause 106 creating a duty to declare other approaches to purchase or lease land round about. As the explanatory statement highlights, this is

“to ensure that any landowner being approached is aware of whether it is just their land that is the subject of purchase/leasing”, or whether those making the approach are also reaching out to other owners of land in the vicinity for the purpose of the development. Subsection (2) states that the above statement

“must include whether the combined amount of land … will be submitted for application as a nationally significant infrastructure project”.

Meanwhile, subsection (3) provides a definition of what is meant by “in the vicinity” in this context, namely anything

“adjoining or within ten miles of the land intended to be leased or purchased”.

Why am I so concerned to address this issue? Quite simply, the problem can arise when developers, in a somewhat sneaky and underhand, albeit not illegal way, have taken advantage of the complexity and siloed nature of the planning system to not be open about their intention for a large infrastructure project. Anecdotally, I have heard of one situation where apparently individual landowners thought they were signing in isolation, unaware that others in the facility had been asked to do the same. When this came to light and the compounding of the land made it into a large infrastructure project, the public outcry was enormous, and apparently there was a backlash against these landowners. We should not forget that often the proposed installations will be in place for 60 years—often on agricultural land—and that, where companies are involved, we often have no idea which ones they are.

This amendment would not prevent land purchasing from occurring but would force better practices, bringing increased transparency and accountability to the process for such giant projects. It is only right and fair that landowners and the local communities potentially impacted have some sense of the scale of the project that is being proposed and how it might have a much bigger impact beyond their boundaries. I beg to move.

My Lords, Amendment 227E, tabled in my name, among others, would address the wide-reaching consequences of a recent Supreme Court decision in a case called Day for persons who acquire former open-space land from local authorities. The context for this is that open spaces held by a local authority under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of the public being given the right to go on to the land for the purpose of recreation. When a local authority wants to sell open-space land, typically because it is either surplus to requirements or part of a land swap to facilitate new, higher-quality open space elsewhere, its decision-making process is subject to various procedural and substantive safeguards, under both statute and common law.

One of the procedural requirements is Section 123(2A) of the Local Government Act 1972. This provides that the local authority may not dispose of any land consisting or forming part of an open space unless before doing so they advertise their intention to do so in a local newspaper for two weeks and consider any objections to the proposed disposal received in response to that advertisement. Under Section 123(2B) of the same Act, the sale of the land post-advertisement then proceeds free of the statutory trust. If a local resident or community group considers that any of the procedural substantive requirements regulating the disposal of land have been breached, they have a remedy: they can bring a claim for judicial review of the local authority’s decision.

In public law, the normal position is that if a public body’s decision is not challenged within the three-month time limit for bringing a judicial review claim, that decision is treated as having all the effects in law of a valid decision. However, in Day, the Supreme Court held that even when the decision to dispose of open-space land has not been challenged at the time of disposal, and may be many years and even decades in the past, a historic failure to comply with the advertisement requirement means the statutory trust persists, thus frustrating the repurposing or redevelopment of the land in question. That is the case, the court reasoned, even if the land was sold to a bona fide purchaser who was completely unaware of any procedural irregularity, and even if there remains no dispute that the land was surplus to requirements.

The effect of this is deeply unsatisfactory. It means that the land which has been sold on the basis of an unchallenged decision that it is in the public interest to dispose of it, which may have planning permission for beneficial redevelopment, is now bound by the statutory trust and cannot be put to its intended beneficial reuse. It sits uncomfortable with the public law principle that unchallenged public decisions should be treated as valid, and with the property law principle that a bona fide purchaser, without notice of equitable interests, takes land unencumbered by those interests. This is causing huge uncertainty in relation to land purchased many years ago—sometimes decades, as I mentioned. The evidence about whether land in question had been advertised prior to sale may no longer be readily available. This is holding up many developments across the country which already have planning permission.

A high-profile example of that is the current proposal to expand the All England Lawn Tennis Club’s internationally renowned facilities at Wimbledon to an adjacent former golf club site, the planning permission for which was recently upheld by the High Court. Claims that it is subject to a statutory trust in the light of the Day judgment are holding up the development and with it the substantial benefits to UK PLC that it would deliver.

Amendment 227E would deal with this issue by providing that bona fide purchasers of former open-space land and their successors in title are free from the burden of a statutory trust. This would not remove the local authority’s duty to advertise before disposing of open-space land, nor would it remove any of the other legal safeguards on the decision-making process relating to such disposal. It would not interfere with the public’s right to challenge a decision to dispose of such land within the usual three-month window for bringing a JR claim.

What it would do, however, is ensure that, where there has been no such challenge and the transaction was made in good faith, the purchase is not subject to the deleterious uncertainty and burdens that I have outlined. This would be consistent with the Government’s stated desire to streamline the planning system and deliver the growth this country needs. I respectfully urge the Minister to give it serious thought.

My Lords, I support the noble Lord, Lord Banner, and have added my name to his Amendment.

Every so often, we get a court decision which produces an unsatisfactory outcome. If, as is the position in relation to this amendment, it is a decision of the Supreme Court, there is no further appeal process. In that event, it is possible to have recourse to Parliament for the resulting problem to be put right. This is such a case.

Quite often, because of the demands made on parliamentary time, it is not practical to get a speedy solution. Fortunately, the Planning and Infrastructure Bill is in progress and is, I believe, tailor-made for the resolution of this problem. The mischief addressed by the amendment was, as you would expect, identified by Lady Rose, delivering the unanimous judgment of the five-judge Supreme Court in the case of R (Day) v Shropshire Council that we are concerned with. In paragraph 116, at the end of her judgment, Lady Rose said:

“I recognise that this leaves a rather messy situation”.

This is one of those situations where Parliament can and should step in to perform some corrective surgery.

I will not weary your Lordships with a detailed analysis of some arcane trust law or a lengthy exegesis of Section 164 of the Public Health Act 1875, Sections 123 and 128 of the Local Government Act 1972, and the provisions of the Open Spaces Act 1906—the noble Lord, Lord Banner, has already done that. I do not mean he has bored your Lordships; I mean he has accurately, if I may respectfully say so, summarised the import of that mixture of ancient legislation.

Where a local authority is proposing to dispose of land, it is technically obliged to advertise that fact for two successive weeks in the relevant local press—that is by virtue of Section 123 of the 1972 Act. This enables residents to register their objections in advance of the disposition. It is a consultation process. I describe the advertising requirement as technical because the 1972 Act specifically provides that any failure to advertise—for example, by mistake or oversight—will not impede or undermine the transaction. The buyer is fully protected and gets title to the land purchased—that is Section 128, as the noble Lord, Lord Banner, made reference to.

That provision says that the sale is not invalid for want of advertising and that the purchaser

“shall not be concerned to see or enquire” whether the advertising requirement has been satisfied. Careful and complex historical investigation conducted by a potential purchaser may reveal that the land is subject to a public or statutory trust under the 1875 Act, entitling the public to go on to the land for recreational purposes. The effect of the Day case is far-reaching. It is accepted that the purchaser gets a good title, but the failure to advertise means that the public right to use the land remains in place. Moreover, that will continue to be the case for ever, because only the local authority has the power or duty to advertise under the 1972 Act, so it has a most profound and permanent effect.

Your Lordships will immediately appreciate the devastating impact of the Day decision. The land is blighted. The potential purchaser—for example, a developer—will walk away either because he does not know if the parcel of land, for historical reasons, is caught by the 1875 Act, or because he discovers it is caught, he can do nothing about it and his development plans would be frustrated. At a time when it is in the public interest to encourage housebuilding, it is important that unjustifiable impediments should not be allowed to undermine the furtherance of that crucial objective.

One can see that an objection to the amendment might be made along the lines that the public right to enjoy the land would be taken away. That is true, but there are two important countervailing arguments: first, there is an important public interest in doing whatever we can about the chronic housing shortage; secondly, it is obvious that, in the 1972 Act, Parliament was giving local authorities the power to sell the land and thereby to ensure that the public recreation rights would fall away for ever. The decision in Day makes it plain that if the advertising requirement had been satisfied, the public right would indeed have disappeared. When we take account of the fact that the purchaser gets a good title in any event, the intention of Parliament in 1972 is clear. That Act was designed to facilitate or ease the transfer of land.

The Day decision has produced an uncontemplated hurdle that can, and I respectfully suggest should, be set aside. I hope your Lordships, and indeed the Government in particular, agree with this analysis and will agree to the amendment.

My Lords, I too have added my name to the Amendment. As the noble Lord, Lord Grabiner, has just mentioned, the Supreme Court concluded its judgment by recognising that it would leave a “rather messy situation”. This amendment gives Parliament the opportunity to clear up that mess. The mischief that the noble Lord, Lord Banner, explained is impeding many developments up and down the country, not least the plans of the All England Lawn Tennis Club to expand its facilities at Wimbledon—a much-needed development that will enable the club to better perform its functions of national and, indeed, international importance. It is a great pleasure to follow the noble Lords, Lord Banner and Lord Grabiner, in relation to this development; they are a formidable doubles team. I will just add a few points.

The first point I want to emphasise is that the law already provides that, if the local authority complies with the statutory requirements and properly advertises the sale, the purchaser takes the land free from the trust. See Section 123 of the Local Government Act and paragraph 102 of the Supreme Court judgment. There is no question of the trust being sacrosanct in law.

The second point I want to emphasise is that, if the local authority fails properly to advertise the sale, any interested person is entitled to challenge the sale within the three-month time limit that applies in the planning context. So the question we are debating is whether the purchaser should be bound by the trust years later, because of the failure of the local authority to advertise, when no one has brought a legal challenge within the applicable time limits and when the land has been bought by a bona fide purchaser.

The noble Lord, Lord Banner, has dealt with the third point, so I can be very brief. It is that the current state of the law, as pronounced by the Supreme Court—which overruled the Court of Appeal and the High Court on this issue—is very damaging to development and to the growth of the economy. That, of course, is one of the primary objectives of this Government. The current position is that developers that have purchased land from local authorities now need to inquire into whether the land was subject to a trust and, if so, whether the local authority properly complied with its duty to advertise.

These can be highly complex matters that take a great deal of time and money to unravel, even assuming, which is often not the case, that adequate local authorities exist. If there was a trust, and if there was inadequate advertising, the purchaser is simply left with land that it cannot develop. In the light of the recent Supreme Court judgment, the problems are even more troubling when the land has already been developed and, perhaps, sold on. The reality the Government need to understand—if I may respectfully say so—is that the judgment of the Supreme Court in Day is being used around the country by those opposed to development as a means to delay investment in much-needed infrastructure. As with the Wimbledon development, they are doing so irrespective of the fact that planning permission has been granted.

Wimbledon is one of many examples—a high-profile one—of the problem. As I understand, the Wimbledon development has already taken five years. Wimbledon’s plans were granted planning permission, and that decision was upheld by the High Court after an unsuccessful judicial review challenge. The Supreme Court decision has caused further delay and uncertainty. The All England Club disputes that the land in question was ever subject to a public trust; before the Supreme Court judgment, that was an academic issue, as the club, as purchaser, would have taken the land free from any trust under the provision of the Local Government Act. Now, the legality of the development depends on complex, expensive research into whether there was a trust and, if so, whether the local authority complied with its obligations to advertise. At best, that will further delay a much-needed development.

I hope that the Minister can tell us today that the Government want to find a solution to this problem. No doubt—if the noble Lord, Lord Banner, will forgive me—the wording of Amendment 227E might be improved, but I am sure that the noble Lords, Lord Banner and Lord Grabiner, and other interested noble Lords would be happy, with me, to meet the Minister prior to Report to discuss ways forward. It may be helpful to include in that meeting representatives of the All England Club who can assist on the practicalities. This is a problem that requires a solution in this Bill.

My Lords, I address Amendments 227C and 227E in the names of my noble friends Lady Hodgson of Abinger and Lord Banner respectively. I thank both my noble friends for bringing these thoughtful and important proposals to the attention of the Committee.

Amendment 227C from my noble friend Lady Hodgson seeks to ensure greater transparency for landowners when they are approached for the sale or lease of the land. Specifically, it would require that the landowner is informed whether their land is being approached in isolation or as part of a wider acquisition, one that may ultimately support an application for designation as a nationally significant infrastructure project—NSIP.

This strikes me as a considered and sensible safeguard. Landowners should be able to make fully informed decisions, particularly where the accumulation of multiple parcels of land could lead to significant legal and planning implications under the NSIP regime. Transparency in the early stages of land negotiation can foster greater trust between parties and avoid unnecessary disputes or confusion further down the line.

Amendment 227E tabled by my noble friend Lord Banner responds to the recent Supreme Court judgment in Day v Shropshire, as we have heard from other noble Lords. The amendment seeks to clarify and reinforce the protections available to purchasers acquiring land from local authorities under the Local Government Act 1972. I can be reasonably brief, since it has been well set out by the three noble Lords.

Given the uncertainty created by that judgment, it is entirely appropriate that we consider how best to provide reassurance to bona fide purchasers acting in good faith. Legal certainty in these transactions is vital, not just for the public sector but for developers and communities which rely on these deals to proceed smoothly.

My noble friend Lord Banner made a strong case that Amendment 227E would deal with the issue by providing that bona fide purchasers of former open-space land and their successors in title are free from the burden of a statutory trust. He also had the strong support of the noble Lords, Lord Grabiner and Lord Pannick. The noble Lord, Lord Grabiner, made the very good point that this is the only vehicle in due sight in order to change it. I hope the Minister will address that point. Are the Government willing to use a small amendment to the Bill to address a problem, which the noble Lord, Lord Pannick, said was a mess?

I have been in this House for a few years, and I think if any Conservative criticised the godlike qualities of the Supreme Court, we would end up in severe trouble. It was interesting to hear that some noble KCs have discovered that the Supreme Court sometimes may get things slightly wrong.

These are very thoughtful amendments. Again, I thank my noble friends for tabling them. I look forward to hearing the Minister’s reflections on these points in due course, and particularly on the points raised by my noble friend Lord Banner and what the Government plan to do to sort out the mess, as the noble Lord has described it.

Before the Minister replies, I just intervene, not having spoken previously, to say there are always two sides to any argument. There were clearly two sides to the argument before the Supreme Court, the other side being Dr Day’s argument that those people who had the benefit of access to open space should have been consulted about the loss of that.

I agree with my noble friend Lord Banner that, clearly, the intention of the 1972 legislation was that local authorities could dispose of that land and that they would be able to do so notwithstanding the previous Open Spaces Act 1906. The point that was asserted on Dr Day’s behalf before the Supreme Court was that those people who benefit from access to open spaces should have been consulted. The opportunity should be taken just to establish that not only do we need to change the law, we need to examine how and under what circumstances local authorities that wish to dispose of land to which the public have access should consult those people who would be affected.

In answer to the excellent speech by the noble Lord, Lord Blencathra, it was not my noble friend Lord Grabiner and I who described the situation as a mess. Those were the words of Lady Rose herself in the Supreme Court. I would not presume to suggest that the Supreme Court judgment was a mess.

While I am on my feet, I am grateful for the opportunity to mention that my noble friend Lord O’Donnell is here but was not here at the beginning of the debate. He tells me that he very much supports this Amendment and would wish to be included in any meeting, if the Minister will grant one. He is a main committee member at the Wimbledon club. He strongly supports the amendment but cannot speak because he was not here at the beginning of the debate.

My Lords, I thank the noble Baroness, Lady Hodgson, and the noble Lord, Lord Banner, for their amendments related to land purchasing, and the noble Lords, Lord Grabiner and Lord Pannick, who have contributed to the debate.

Amendment 227C seeks to ensure that, when approaching landowners to buy or lease their land in connection with a proposed development, developers declare their interest in purchasing adjacent land and confirm whether purchasing that land is being done in connection with a nationally significant infrastructure project for development consent via the Planning Act 2008. While I appreciate the intent behind this amendment—to increase transparency and discourage speculative land banking, which none of us wants to see—I respectfully argue that it is neither appropriate nor necessary within the framework of the Bill.

Purchasing land in relation to developments, particularly those that relate to nationally significant infrastructure projects, can often be sensitive in nature and thus require confidential discussions between parties to ensure that the most appropriate and proportionate outcome is achieved for all. Requiring developers to disclose whether they are in talks with other landowners could inadvertently breach confidentiality agreements, potentially jeopardising progress on the development of projects.

Furthermore, within the Planning Act 2008 guidance related to procedures for the compulsory acquisition of land, there is government guidance on where purchasing land is required in connection with nationally significant infrastructure projects. This encourages developers to enter into early discissions with people who could be affected by land acquisition as a result of an NSIP. The Government stand by this guidance and seek to build on those principles without complicating negotiations with additional burdens on developers.

Lastly, where land is being purchased in connection with an NSIP, applicants are required to produce and keep up to date a book of reference, which is submitted with the application for development consent. This is a crucial document that is available for the public to view once an application has been submitted and accepted by the Secretary of State and outlines all land and interests in the land associated with the application. This includes land and interests in land that may be affected by the development, including through compulsory acquisition, temporary possession or interests being suspended or extinguished. This document, therefore, provides a clear and transparent account of all land and interests in land proposed to be affected by an NSIP.

With that, I thank the noble Baroness for her helpful proposal. However, in the light of the sensitivities noted, the guidance published, and the existing requirements of the Planning Act 2008, we do not consider that this amendment is necessary.

I turn to Amendment 227E. I hesitate to take on the combined ranks of the eminent noble Lords who have spoken in this debate, but I am grateful to the noble Lord, Lord Banner, for raising this important matter related to the disposal of land by local authorities and extinguishing the trust under which the land is held for public enjoyment, whereby it is preserved for recreational use and cannot be repurposed without following statutory procedures. The Government agree with the intent behind this amendment.

Open and green spaces and public parks are an essential part of local social infrastructure. They are one of the main reasons why people feel proud of their local area. They provide places for social connection, support health and well-being, increase community engagement and volunteering and help people to connect with nature, and can be a strong foundation for social capital.

We acknowledge that not all open spaces continue to serve their original recreational purpose. In fact, when they become neglected, they can cease to be an asset and become a burden for local authorities and communities. That is why there is a long-established procedure under Section 123 of the Local Government Act 1972 to allow for the disposal of open land held in trust.

If the procedure is followed, the land can be disposed of free from the trust provisions. Local authorities must advertise the intention to dispose of the land for two weeks in a local newspaper and consider any objections to the proposed disposal. Purchasers of land from local authorities can already protect themselves from acquiring land that they cannot develop because of a statutory trust by considering with their legal advisers whether the correct procedures have been followed, or raising appropriate pre-contract inquiries with the local authority prior to acquisition.

We recognise that, in some cases, development on these spaces is prevented if local authorities do not follow the procedure as set out in Section 123 of the Local Government Act 1972, leaving developers in legal uncertainty, notwithstanding that they have purchased the land, as the R Day v Shropshire Council case has shown. However, the amendment proposed will not resolve this issue effectively, and thus will fail to have the intended effect. It would create a contradiction of procedures in the Local Government Act 1972 and would also have retrospective effect. While we must accelerate development, it is critical that local authorities consult communities—a point made by the noble Lord, Lord Lansley—on the disposal of open land held in trust for public enjoyment to preserve the integrity of statutory procedures that protect public spaces.

The Government believe that this issue needs to be given wider consideration to identify a balanced solution that takes into account legal safeguards and addresses the practical challenges faced by developers. It will also require engagement with the sector, which the noble Lord will be very welcome to join, as will other noble Lords who have indicated their interest in this issue. I look forward to further engagement. I think we probably can sort out the mess working together but, for the moment, for the reasons—

The Minister is suggesting that the Government are going to change the law on this. Can she give us any indication of the timescale when we might see legislation—an Amendment to some primary Act of Parliament?

I would be very loath to do that because, whenever you start looking into legal matters, in particular, it is always more complex than you anticipated. With the will to help make this make sense, I hope that we will be able to bring our combined forces together and get some resolution to the issue. But, for the reasons I set out, I hope that noble Lords will not press their amendments.

My Lords, I thank the Minister for her considered response. I am disappointed in her response to my Amendment, because I think that, although I understand her point about confidentiality, there may be ways of communicating when landowners are approached, whether it is just an isolated approach or whether it is part of a larger project. I hope that there may be more thought about this.

I am sure that other noble Lords will have been heartened by the Minister’s response to Amendment 227E when she said that there will be further conversations to find a way to resolve this. I very much hope that further consideration will be given to the whole transparency issue, which might be brought back on Report. With that, I withdraw the amendment.

Amendment 227C withdrawn.

Amendment 227D had been withdrawn from the Marshalled List.

Amendments 227E to 227GA not moved.

Clause 53: Overview of EDPs