HC Deb 29 March 1995 vol 257 cc995-1002

2 pm

Mr. Toby Jessel (Twickenham)

Mr. Deputy Speaker, may I first thank you for the opportunity to raise the question of educational land at Craneford way, Twickenham? The House of Commons has always served as a forum for Members to raise the concerns of constituents. That is what I shall do today.

I shall ask my hon. Friend the Under-Secretary of State for Further and Higher Education to direct his attention to the real anxieties of the residents of Heatham park, Twickenham and not merely to deal with the legal position at Craneford way, where the Education Assets Board has divided into two the ownership of an important piece of land. It has done so apparently without regard to the impact on the surroundings of people living nearby in Craneford way, Court way, Heathfield north, Heathfield south, Egerton road, Chudleigh road, Whitton road and beyond.

The people living in the district already suffer from aircraft noise from Heathrow, from heavy traffic along the A316 trunk road—the Great Chertsey road, which is the M3 motorway feeder—from the rugby football crowds on big match days at the Rugby Football Union grounds, Twickenham, only a few hundred yards away, from Richmond upon Thames borough councils big rubbish depot in Craneford way and from its rubbish lorries clanking noisily over road humps in Egerton road from 5 oclock and 6 oclock in the morning.

The Liberal-controlled Richmond upon Thames borough council even published a draft unitary development plan that showed a railway line from Kingston to Heathrow along a viaduct over the open green fields in question. That was shown in a letter from the chief executive of the council to me dated 9 November 1993. Not surprisingly, that plan attracted fierce opposition, and I urged that it should be dropped, which it was.

The environment of the residents is affected by Richmond upon Thames college at Egerton road as well. That is a highly successful tertiary college with about 3,000 students aged from 16 to 19, although some are older, many of them from my constituency. Others are from that of my right hon. Friend the Member for Richmond and Barnes (Mr. Hanley) or from outside the London borough of Richmond upon Thames, but well over 1,000 of the students are from Twickenham. The college is generally highly valued, except perhaps by some of its immediate neighbours. I have had to come to terms with some conflict of interest between the college and the residents.

The problem has arisen because, under the Further and Higher Education Act 1992, the college ceased to be funded by the local education authority, the Richmond upon Thames borough council, and began instead to be funded by the Further Education Funding Council for England.

I voted for the 1992 Act, as its aim was to ensure that colleges were free to respond to the demand from students and employers for an increase in the amount of high-quality further education. Now that such colleges have left local authority control, more money is being spent on further education, and the participation rate for 16 to 19-year-olds in education has increased significantly, even in those two years.

It all corresponds to the growth in higher education since 1979, as now about one young person in three in the age group from 18 upwards is receiving further or higher education and 15 years ago it was only about one in eight. The work of the tertiary colleges acts as a feeder for that, and in doing so gives opportunities to a larger number of young people who are in that age group.

However, as a result of that change in financial responsibility for the college, there was a dispute about the ownership of two fields to the south of Craneford way, to the south of the college and to the east of the councils rubbish depot. The council and the college both claimed both fields. It fell to the Education Assets Board to decide.

The Education Assets Board ruled that one field should go to the council—the field on the west side, which is marked blue on the map that is used to describe the situation—and that the field on the east side, marked red, should go to the college. Those two fields are divided by a public footpath. The field assigned to the college is more flat and is therefore said to be more suitable as a sports ground, but the residents would have preferred the allocation to be the other way around, because more of them live close to the flatter field and are fearful about the future effect on their environment.

The Education Assets Board, in reaching its decision, took representations from the borough council and from the college, which were deemed under the 1992 Act to be parties to the dispute in that each claimed ownership; but the board did not take evidence from residents, who feel that their environment and their facilities are threatened by the possible loss of access to either or both fields or by parking of large numbers of cars on big rugby union match days or even by building on the site in the future.

Typical of the feeling of such residents is a letter that I received only yesterday, and which I conveyed to my hon. Friend the Minister well on into the evening. It is from a resident of Heathfield south. He wrote on 25 March 1995, but the letter must have come in the second class post and did not arrive until 28 March: I was incensed at the meeting held at the Tertiary College last night— I held a public meeting on Thursday night— when during your introduction I discovered that the EAB had classified the local residents as a third party. As a result … I now understand that the board ignored correspondence sent to them in the good faith that it would consider alongside other relevant submissions. Surely, the EAB have a duty to consider or at the very least pass on the correspondence to the relevant parties in the dispute or otherwise to clearly— I repeat, clearly— explain the reasons why they are unable to accept our submissions. I was simply informed by their legal adviser that I may wish to ask the Borough Council to consider my comments which quite frankly is totally misleading. It was not until your meeting that I discovered that they would only consider submissions that came directly from the parties in dispute. It would of course have been open to the Richmond upon Thames borough council, as a party to the dispute, to represent all such views to the Education Assets Board, and in that way it would have been possible for the board to take environment into account. In this case, it appears that the board did not do so, because my constituent was not given anything like a full explanation of his rights by the Education Assets Board, which seems to have replied to him in a rather cavalier and vague fashion. Furthermore, the council could have appealed to the Secretary of State for Education against the Education Assets Boards decision. However, the council decided not to do so. Instead of appealing, the council asked the Secretary of State to put two conditions on the transfer of the land. Those conditions were to keep the field unfenced and to make sure that the field was used only for the purpose of education and recreation and not for any commercial purposes. Those two conditions proposed by the council are set out in a letter to me from the chief executive of the council dated 21 March, which I have passed to my hon. Friend.

It is of course Government policy to promote more sports and games in schools—both the Prime Minister and the Secretary of State for Education have said so repeatedly. Schools usually means for children up to 16 years. Of course, if there were an increase in sports and games among children up to 16, then, in time, that would result in more demand for sports and games provision for the over-16s.

The college is adamant that it needs the playing fields for sport as it aims to be a sports centre for west London. It says that its current use of the sports field is inhibited by dog messes as people are allowed to walk their dogs in the field which is unfenced. The college says that, as a result, it has to hire sports fields elsewhere which are less convenient as they are further away, and which cost the college money.

I should like to stress to my hon. Friend that there is a credibility gap between the college and the residents. The residents say that the fields have hardly ever—I repeat, hardly ever—been used for sport. It has been reported to me that, when an inspector from the Education Assets Board came all the way from its offices in Leeds to look at the lie of the land, two sports matches were put on for his benefit, a car from the college met him at Twickenham station and he was then given lunch at the college. I must ask my hon. Friend to check the evidence as to the real extent of the historic usage of the field for sport, as otherwise it is entirely possible that the adjudication of the Education Assets Board was based on false premises, which already one of my constituents has asked me to refer to the ombudsman.

The college has lodged an appeal with the Secretary of State against the councils conditions. I understand that that is what my hon. Friend who is advising the Secretary of State has to deal with. I took up those conditions with my hon. Friend, but I was told that there was some doubt in his Department about the legality of imposing such conditions. Therefore, last Thursday—the day of the public meeting which I called—I sought legal advice from Mr. Stephen Mason, QC, Counsel to the Speaker. Mr. Mason examined the matter fully and he has since written to me as follows: The question is whether, on the appeal, she— the Secretary of State— could impose (for the first time) conditions or restrictions on the future use of the part of the land transferred to the College. My advice is that she has no power to do so; and nor has the Board. He means the Education Assets Board. He continued: The Board can only do what these statutory provisions require or authorise it to do. And the Secretary of State can only in law do what the Board can do. The statutory functions are restricted to the transfer of existing property, rights and liabilities. The only scope for the creation of new rights and liabilities is for the protection of one party to the transfer as against the other. It is clear that the interests of any other persons are not in law a proper part of any determination of the Board or of the Secretary of State. So if she created the new restrictions on use for the protection of the local residents her decision would make her liable to proceedings for judicial review of it. That means that, if the Secretary of State does, or tries to do, what the Richmond upon Thames borough council has asked in imposing the two conditions, the college could take the Secretary of State to court and would win the case. If that is so, the Richmond upon Thames borough council has asked the Secretary of State to make a decision which she has no power to do. Yet the council seems to have relied upon the Secretary of State to impose the conditions while it decided not to appeal against the decision of the Education Assets Board to divide the land.

I understand that the solicitor employed by Richmond borough council was told by a lady in the office of the Education Assets Board that the Secretary of State might make conditions, which turns out not to be the case. Surely it is such an important matter for the residents that the Richmond upon Thames borough council should have taken a second legal opinion before deciding what or what not to do.

I come to the question of what can be done for the residents now, and I shall make eight quick points. First, the borough council should get a second legal opinion on what Mr. Mason wrote. But, to be realistic, that is not a very promising course as, even if the legal opinions differed, the Secretary of State would still have to face the risk of the college taking her to court if she attempted to decide in favour of the councils conditions. Secondly, in the light of Mr. Masons advice, is it legal for the Secretary of State to extend the final date of the appeal against the adjudication by the EAB to give the council another chance to appeal?

Thirdly, towards the end of his letter, Mr. Mason wrote: If, however, the land in question were subject to restrictions on its use (as by restrictive covenants, trust restrictions or perhaps planning permission) then the land would be transferred subject to these existing restrictions. Could my hon. Friend look at those restrictions? Fourthly—perhaps this is the most promising idea—Mr. Mason wrote: I cannot say whether planning permission would be required for a change of use from recreation to use as a car park. But I think it probable that it would be if the changed use was a regular feature. Will my hon. Friend ask the Secretary of State for the Environment about that in order to give guidance to my constituents, a large number of whom are very concerned about the car park?

Fifthly, does the metropolitan open land designation under the unitary development plan help to protect people there from developments? Sixthly, can the college be encouraged to renounce any question of using the land as a car park? Perhaps the funding council could be asked to speak to the college about that. Seventh, there is concern about the safety of women and children using the footpath between the fields to which I referred. Can that issue be looked at?

Finally, and perhaps most importantly, the needs of children are paramount. If the eastern field became a playing field for older youths aged 16 to 19 years, it would be even more important to keep the western field available for young children. I hope that my hon. Friend will join me in encouraging Richmond council to make certain that that takes place.

2.18 pm
The Parliamentary Under-Secretary of State for Further and Higher Education (Mr. Tim Boswell)

I congratulate my hon. Friend the Member for Twickenham (Mr. Jessel) on securing this debate on a matter, which I know is of great concern to him and to his constituents.

I begin by making it clear that there are two aspects to the dispute about the Craneford way playing fields, and that only one of them comes within the remit of the Education Assets Board—about which I shall say more later—and of the Secretary of State for Education. That is the question of the entitlement under the Further and Higher Education Act 1992 of the London borough of Richmond and Richmond upon Thames college to the playing fields. The aspect of the dispute in which neither the assets board nor the Secretary of State for Education has a role concerns the use made of the playing fields by their owners and by local residents under planning legislation. I think that it is that question which is of most direct concern to my hon. Friend.

I fully understand that concern, but I am afraid that it is not a matter for the Education Assets Board or for my Department. It is primarily a matter for the London borough of Richmond as the local planning authority. However, I shall ask a ministerial colleague at the Department of the Environment to write to my hon. Friend about the planning and land use questions that he has raised with me. I may be able to say something about them later in my remarks.

My Departments role is confined to the appeal lodged by the borough against the determination of the assets board regarding the colleges entitlement to part of the Craneford way playing fields. I hope that my hon. Friend will not be too disappointed when I tell him that I am not in a position to anticipate how the Secretary of State might decide this particular case, nor can I respond in this debate to all the points that he has raised. We shall study the record and may write to him subsequently. I shall also arrange for officials to draw them to the attention of the borough and the college respectively, as the two protagonists in the dispute.

The dispute has arisen as a consequence of college independence. In 1993, we transferred responsibility for providing further education from local education authorities such as the London borough of Richmond, to colleges, including tertiary colleges, such as Richmond upon Thames college.

This transfer of responsibility was accompanied by the transfer to colleges of the property, including land, held or used by authorities for the purposes of those colleges. The transfer was necessary because it would clearly not have been sensible to give colleges responsibility for providing further education without giving them the means to do so.

I emphasise that the transfer of property has not privatised it. The property remains in public ownership; it has simply transferred from one public body to another. I also emphasise that the Craneford way playing fields could have been excluded from transfer and remained in the hands of the local authority. That could have been achieved by agreement between the college and the authority, provided that the Secretary of State approved their agreement.

Alternatively, in the absence of such an agreement, the college or authority could have applied to the Secretary of State for the transfer to be waived. In either case, the college could have been permitted to use the land, subject to appropriate conditions, but neither of those options was pursued and they are no longer available. However, it is still open to the two parties to reach an agreement on the disposition of the land and any conditions attaching thereto.

How has ownership of property transferred to colleges? Where possible, it is done by agreement between authorities and colleges under the oversight of the Education Assets Board, which is responsible for securing agreement with authorities about what properties should transfer to colleges. Where agreement has been reached in principle directly between an authority and a college, the boards role has been limited to ensuring that that agreement is documented, but where a college and authority have been unable to reach agreement, the assets board has a duty to try to negotiate one. Where such an agreement appears to the board to be unlikely, or has not been reached after negotiation, the board has power to give a direction which determines the dispute. That is what the board has had to do in the case of Craneford way playing fields.

The Education Assets Board is a small non-departmental public body based in Leeds. It has 10 part-time members, including a chairman, appointed by the Secretary of State for their experience of property management, education, local government and finance. It also has some 19 full-time equivalent officials, including a chief executive who is a further member of the board.

The assets board has so far completed the transfer of property from local authorities to 165 further education corporations, and is currently considering a further 319 such transfers, but the boards remit is not confined to further education. It also oversees the transfer of property from local authorities to other types of educational institution which have left their control, such as grant-maintained schools.

The board reaches its decisions by negotiation wherever possible, but it is clearly sometimes necessary to bring stalled negotiations about a property transfer to a conclusion. As I have mentioned, the board has power to break such a log-jam by giving a direction.

The boards power of direction is not unbounded. There are two constraints. First, the board must act reasonably, and its decisions must be capable of withstanding scrutiny.

Mr. Jessel

On the question of withstanding scrutiny, will my hon. Friend deal with my question about what remedy exists if the Education Assets Board has reached a decision based on wrong assumptions about the facts because the official from the board visiting the site was bamboozled as to the extent to which the field had been used for sport in the past?

Mr. Boswell

I shall respond to my hon. Friend rather briefly on that matter. As he knows, an appeal has been lodged and it is for the parties to that appeal to bring forward evidence for the Secretary of States consideration in determining the appeal. I may wish to write to him further on the matter.

Secondly, the law prescribes how disputed property is to be treated by a local authority and college in any agreement between them. The assets board is bound by the same rules if an authority and college cannot agree and it has to determine the dispute. In particular, where an authority held or used property partly for the purposes of college and partly for other purposes, and where the nature of the property permits its division, the law requires the property to be divided between the college and authority as appropriate.

The boards approach to disputes is therefore primarily forensic. Was the property held or used wholly for the college or for other purposes of the authority? If it was held partly for each, can the property be divided between them? If so, what would be the appropriate division? If it cannot be divided, how should it be treated?

A determination by the board is not necessarily the last word in the dispute. Either the college or the authority may appeal against it to the Secretary of State, as the borough has done in the case of Craneford way, but the Secretary of States consideration of an appeal is also constrained. She acts in a quasi-judicial role, so she is bound by the rules of natural justice. Like the assets board, she is bound by the law regarding transfers and may not deviate from it.

As a result, the Secretary of State may not consider the views of third parties, such as local residents, in an appeal against a determination by the assets board. It is open to them to put their views to their local authority, or the college. However, it must remain for the authority or college to decide how to present its appeal.

I realise that some in Twickenham question whether the London borough of Richmond has adequately represented their views. I am afraid that the issue is not a matter for the Secretary of State. Residents must take up their concerns with the borough.

I know that it is a sore point with local residents that they have not so far had sight of the submissions to the assets board made by the borough and the college in support of their case regarding the playing fields, despite having asked both the board and my Department to release the submissions.

Their request for disclosure of legal argument submitted to the Secretary of State by a third party has raised novel and difficult questions of openness versus confidentiality. We have not decided whether the information sought should be properly released. I can assure my hon. Friend that we shall reach a decision and write to him as soon as possible.

It is a sore point that the law does not give third parties a statutory right to object to property transfers or the terms on which they take place.

Mr. Jessel

Will my hon. Friend give way?

Mr. Boswell

If my hon. Friend will bear with me, I must complete my speech for the record. I shall write to him about any further points.

That rule is the case both when the assets board is considering a dispute and when the Secretary of State is considering an appeal against a determination by the board.

There are two reasons for that exclusion. First, the disputes concern the entitlement of the local authority or of the college to ownership of the property in question. Third parties who have no claim to property do not normally have the right to involve themselves in a dispute about its ownership.

Secondly, the position of third parties in relation to property transferred by a college is not altered by the transfer. Any legally enforceable rights which they had in relation to the property before it transferred remain intact after the transfer and any covenants or other restrictions to which the property was subject while it was owned by the authority continue to bind the college.

Moreover, although residents do not have a statutory right of objection to the transfer of property to a college, they continue to have such a right regarding the colleges development of that property, because colleges are bound by the same planning laws and regulations as other local bodies.

I hope that my hon. Friend and his constituents will be reassured to know that Richmond college would need planning permission to develop the playing fields, and that local residents could formally object if the college lodged a planning application. They have a further safeguard: the playing fields, both east and west, are classed as metropolitan open land. That is the urban equivalent of green-belt land, and there is a general presumption against inappropriate development within such land.

This is bound to have been a somewhat disappointing reply to my hon. Friend the Member for Twickenham. I am sorry about that, but the debate has been valuable in casting light on a rather obscure but important area of public administration and in recording the views of my hon. Friend and his constituents on a matter that is clearly of considerable importance to them. He has represented their views with characteristic force and diligence.

It being half-past Two o'clock, the motion for the Adjournment of the House lapsed, pursuant to Order [19 December].