Right to Regenerate: a right to purchase local authority land?

The government has announced new plans, which if brought in, could force publicly owned brownfield sites onto the market.

Housing Secretary Robert Jenrick announced the plans last month, reforming the current “Right to Contest” to stimulate regeneration of development land. The new proposal, with the new epithet the “Right to Regenerate”, is the subject of a live open consultation which will close at 11:45pm on 13 March 2021.

(A link to the open consultation can be found here: https://www.gov.uk/government/consultations/right-to-regenerate-reform-of-the-right-to-contest)

Past: Community Right to Reclaim Land

Since 1980, the public has been able to request that the government considers whether certain publicly owned land is unused or underused, and if so to direct that it be sold. In 2011 this power was incorporated into the Community Right to Reclaim Land.

Such a request could be granted by the Secretary of State if (a) the land was under-used or vacant; (b) there was no suitable plan in place, or likely to be put in place for use to be established; and (c) the land should have been disposed of to enable it to be brought back into use.

Present: Right to Contest

In 2014 the government re-structured the Right to Reclaim and renamed it the Right to Contest. The underlying principle of the right remained the same; allowing members of the public (or business entities) to apply to challenge the government to sell publicly owned land which is empty or underused, if there are no plans to bring it back into use.

The current regime is an under-used and little-known right, which has given rise to only one direction to dispose of land from 192 requests since January 2014. It is a weak right, governed by a confusing process and, in practice, it is easily defended by public authorities.

Local councils can rely on grounds for not selling including: (1) the site is vital for operational purposes; or (2) other considerations outweigh the potential better economic use.

Members of the public may identify land in public ownership by visiting the public land database on the data.gov.uk website, or the local brownfield register which authorities have been obliged to maintain since 2017.

(A link to the government guidance on Right to Contest applications can be found here: https://www.gov.uk/guidance/right-to-contest#reasons-departments-can-give-for-not-selling)

Future: What is the Right to Regenerate?

The new proposal will apply to county, borough and district councils in England as well as combined authorities like the Merseyside Combined Authority and the GLA, development corporations owned by local authorities, plus police and transport authorities. Central government departments would not be included.

The proposed Right to Regenerate is designed to be a quicker and easier route for individuals and business entities to identify, purchase and redevelop underused or empty land.

The government announced the proposal with the by-line to “make it easier to challenge councils and other public organisations to release land for redevelopment – helping communities make better use of public land and give a new lease of life to unloved buildings”.

What should local authorities be doing?

With a renewed push from government to stimulate private interests to take control of publicly owned land, local authorities need to revisit their portfolios to identify sites with development potential and the uses that might be supported. This is vital to ensure that the best use of land is achieved, as well as priming local authorities to maximise any capital receipts that may arise The Housing secretary said that LPA’s must have “clear plans for land in the near future, even if only a temporary use before later development”. If they do not, they risk being forced to sell their land in the future.

Local Authorities should be proactive in advance of receiving notice of an application for a direction to sell, to safeguard their own regeneration plans and to ensure that they are able to retain control over their land. Our team of experienced property, planning and property litigation specialists can help by advising on local body rights over land and, if necessary, defend such an application.

If you would like more information on the topic, please contact Sophie Stewart, Helena Davies or Helen Burns or visit our Local Authorities Team page.