Perhaps I could set out the purpose of the clause, before turning to the specific and perfectly fair questions that the hon. Lady has asked.
Clause 14 replaces the power in section 24(2)(d) of the Commons Act 2006 to charge fees for applications made under part 1 of the Act to amend the registers of common land or town and village green, with a revised power that applies in England. The power as it applies to Wales is restated, but is unchanged.
This revised power allows the Secretary of State to make provision in regulations for fees payable in relation to an application. The aim of the clause is to allow for greater flexibility and targeting of fees for applications to amend the registers under part 1 of the Bill. That would be subject to secondary legislation and therefore, of course, to parliamentary scrutiny.
The powers will ensure that the Government can prescribe in regulations for more than one fee to be charged during the application process, for example at different stages of the application. The clause also makes provision for a fee payable to be determined by the person to whom an application is made or, if it is different, by the body that will determine the application.
This type of situation, whereby the commons registration authority receives an application, but the Planning Inspectorate determines it, presently happens in seven commons registration authority areas that have pioneered the implementation of part 1 of the Commons Act 2006 under the Commons Registration (England) Regulations 2008. At the moment, only the commons registration authority has the power to charge a fee.
In the pioneer areas, an application must be referred to the Planning Inspectorate where
“the registration authority has an interest in the outcome of the application”.
It is not uncommon for town and village green applications to relate to land owned or managed by the commons registration authority itself. However, under the current legislation, the Planning Inspectorate cannot charge a fee to recover any cost for determining the application in those circumstances. The new powers would allow for the commons registration authority to charge for its component of the work, and the Planning Inspectorate could do the same.
The conflict of interest scenario could conceivably apply to any application under part 1. Furthermore, applications must also be referred to the Planning Inspectorate where they would correct a mistake in the register to add land to or remove it from the register, or to correct the details of a right of common in a register. So this is not just about greater flexibility to charge for town and village green applications; it is an issue for any application to amend the registers under part 1 of the 2006 Act.
The Department for Environment, Food and Rural Affairs 2011 consultation on town and village green reform proposed setting fees for applications. The clause makes existing fee-making powers more flexible if we decide later that fees are appropriate. However, the Bill does not set fees—that would be done later through regulations. Any fee that is set would need to be fair and to balance recovery of costs by registration authorities against the impact on applicants for registration.
In answer to the hon. Lady’s second point, we have not yet taken a decision as to whether the costs involved should be capped and whether there should be a limit to the fee. I am happy to take into account what she has said on that. Any fee that is set will need to be fair to all sides in the measurement of that particular impact.
The hon. Lady asked whether the legal costs were included in the fees to be set, and, if they were, whether they would be a deterrent to applicants. Nobody wants to discourage proper applications under this process. I will get back to her, if I may, on that point. She also asked whether costs would be recovered only in cases that are vexatious. It is my understanding that that is not the case. Again, if I am wrong, perhaps I could advise her in writing. I beg to move that the clause stand part of the Bill.