The Right to Regenerate (potentially)

The Government is continuing on their announcements in relation to the housing sector and their opening of consultation on a variety of housing topics.

As an aside they are also liking to vary the timings for submitting any consultation responses with the Right to Regenerate: reform of the Right to Contest having a closing time of 11:45pm on 13th March 2021.

In summary, the Government is looking for engagement in relation to the potential expansion of the Right to Contest concept with a new Right to Regenerate providing the public with the ability to request for unused public land or buildings to be sold. The Consultation document sets out a number of questions for consideration including views on the meaning of “unused” or “underused” land.

The current regime contained in the Local Government, Planning and Land Act 1980 is seen as a tool of last resort with the consultation noting that since 2014, 192 requests have been of these, 145 were refused, 10 withdrawn, 9 are still pending, 27 were not a valid request and one direction to order disposal was issued. The success rate for promoting development and regeneration has not been high. The common objection for allowing land to be brought forward is that the Public Body has allocated the land within the relevant local plan. The recent commentary on the current planning systems and the delivery of local plans may feed into the Governments desire to apply further levers to prompt development.

The announcement references that those exercising the proposed right will be provided with the benefit of pre-emption to acquire the property. This opens up many of the traditional questions in relation to:

  1. How long will applicants have to exercise the right?
  2. Will applicants need to be able to demonstrate funding as part of exercising the right to minimise potential delays
  3. How will the property be valued? Typically public bodies will look to apply overage and restrictive covenant mechanism in a bid to derive future value and exert further controls over property sold. If the property is to be sold on an unconditional basis will this mean the end to such mechanisms?
  4. Question 7 of the consultation states – Should the government introduce a presumption in favour of disposal of land or empty homes/garages where requests are made under the right? Will the presence of such a right motivate public bodies to dispose of homes to other bodies such as RPs to ensure that the homes are utilised appropriately?
  5. Question 10 raises the point of any conditions on the disposal of land – for example, if the land is sold should there be a period of clawback if the property is not developed? Will there be restrictions on further sales until the regeneration is completed? Is there a risk of numerous applications being made to provide organisations with the benefit of a number of pre-emptions that could be looked to be traded on the open market.

The Consultation references the desire to minimise red tape, the potential risk is that more accessible right could introduce delays or potentially be inadvertently used to hold up development plans if the appropriate mechanics are not applied to the Right.

The intention of providing the public with greater control and the ability to call for land to be brought forward for regeneration is a positive step however, it would be remiss as solicitors not to express caution that the detail needs to be appropriately considered and applied. We would recommend that organisations consider the questions proposed by the consultation and engage if appropriate to ensure that a balanced approach is considered.

For more information please contact Partners Jonathan Corris or Hannah Langford in our Real Estate & Projects team.

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