Kate Ashbrook: Green spaces threatened? It's already too late

Our right to enjoy green spaces and the right to light are both currently threatened, according to Kate Ashbrook, general secretary of the Open Spaces Society...

Development is all. This Government tugs its forelock to developers.

It plans to prevent us from applying to register a village green when land is threatened with development. It wants – where it affects development – to end our long-held right to enjoy daylight in our homes. It wants to make it easier to destroy open spaces without providing land in exchange. And it wants to create a new criminal offence of trespass on public spaces. All could affect our everyday lives.

If you have enjoyed an activity for 20 years, unchecked, openly and without permission, you acquire the right to enjoy that activity; a centuries-old principle known as prescription. It applies to town and village greens, which are not only the typical chocolate-box spaces in the village centre, with pub, cricket pitch and duck pond, but any space used for informal recreation, such as dog-walking, picking berries or kicking a ball. Where this has been without interruption or permission for 20 years, communities can apply to register the land as a green and thus gain the right of recreation. The land is then protected, by 19th-century legislation.

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The Government claims people are using this process to stop or delay development – a claim for which it has little evidence. The number of green applications in relation to planning applications is in fact minuscule; in 2010 there were 475,000 planning applications and only 134 green applications, so the greens can hardly be affecting development. In fact, the Secretary of State for the Environment, Owen Paterson, said as much on BBC One’s Countryfile last November: “We’ve had a few cases where late in the day there have been vexatious applications [for greens]”. That’s it: only a few. Yet the Government wants to wreck the law of greens on this scant evidence.

Of course, when people learn that land they have used and enjoyed for decades is under threat, they want to save it. Registration as a green is merely a recognition of the rights they have acquired there. But the Government does not want anything to stand in the way of development, so its Growth and Infrastructure Bill will outlaw applications to register a green once that land has been identified for development, even if that has occurred in secret, allowing no period of grace. As soon as the land is threatened, it becomes too late to save it.

Many greens have been registered which would have been lost under the new rules: for instance at Pucklechurch, and Whitchurch, Bristol, both much-loved green spaces which were threatened with development. The new regime will take effect immediately the Growth Bill receives Royal Assent, so there is little time.

Next under threat is people’s ancient “right to light”. This, too, is based on prescription: householders’ uninterrupted enjoyment of natural light for 20 years. But The Law Commission, with backing from ministers, is consulting on plans to axe it, inspired by a court case which required the top floors of a building which blocked a neighbour’s daylight to be removed.

Meanwhile, another clause in the Bill will remove Parliament’s democratic right to determine the fate of open space and instead give it to the executive. Currently, when a local authority or statutory undertaker seeks a development consent order involving a compulsory acquisition, either it must give suitable land in exchange, or the order is subject to scrutiny by special parliamentary procedure (SPP). In future, the Communities Secretary will be empowered to waive SPP for open spaces where there is no suitable exchange land, or the said land is considered too expensive. Parliament will no longer have the final say.

SPP has rarely been invoked, probably because developers know that providing a suitable exchange is a significant hurdle. If the law is changed and the decision is left to the Secretary of State, it removes the incentive for developers to provide such land because they can apply to the minister to let them off the hook.

And even where we still have greens and open spaces, we may find we can no longer enjoy them. The draft Antisocial Behaviour Bill will allow local authorities to make “public spaces protection orders” – by which is meant the exact opposite, for these are exclusion orders. They may be applied to paths and open spaces, including village greens, where the public has the right to be; the land may be of any size and in any place. It will be a criminal offence to go where an order is in place. In other words trespass, normally a civil offence, will become a criminal act. As drafted, this Bill is unprecedented and oppressive.

So public rights of recreation, and ancient laws of prescription, count for nothing with this Government, though it boasts of being the greenest ever and takes pride in encouraging localism. But the Open Spaces Society will do all it can to fight for our precious spaces in the teeth of development.