LGA submission to the Ministry of Housing, Communities and Local Government consultation on Right to Regenerate: reform of the Right to Contest

Councils are committed to working in partnership to create better places by using public sector assets more efficiently, creating service and financial benefits for partners, as well as releasing land for housing and other development to deliver wider social, environmental and economic outcomes for local communities.


1. About the Local Government Association (LGA)

  • 1.1. The Local Government Association (LGA) is the national voice of local government. We are a politically-led, cross party membership organisation, representing councils from England and Wales.
  • 1.2. Our role is to support, promote and improve local government, and raise national awareness of the work of councils. Our ultimate ambition is to support councils to deliver local solutions to national problems.

2. General comments

  • 2.1. Councils are committed to working in partnership to create better places by using public sector assets more efficiently, creating service and financial benefits for partners, as well as releasing land for housing and other development to deliver wider social, environmental and economic outcomes for local communities.
  • 2.2. More than 97 per cent of councils in England are now engaged in the One Public Estate (OPE) programme, which supports public bodies to identify and release surplus land, with a particular emphasis on repurposing such public land for housing and economic uses.
  • 2.3. Given the extensive public sector land release programmes that now exist, we would question whether there is still a need for the Right to Contest (or a reformed version), which originates from legislation which is now over 40 years old.
  • 2.4. It is also surprising that the consultation focuses on Strand 2 of the Right to Contest and excludes Strand 1 (which covers central Government bodies on a voluntary, non-statutory basis). If the Government is minded to take forward the proposals in the consultation, they should also apply to central government bodies in addition to the public bodies set out in Schedule 16 of the Local Government, Planning and Land Act 1980.
  • 2.5. We recognise and support the Government’s objective to ensure that public land is being used effectively and maximising its potential. Any reforms need to ensure that councils can continue to take a strategic approach to re-use and release of assets that they own. There is a risk that the proposals outlined in the consultation could lead to a piecemeal approach to development which deals only with land that is owned by Schedule 16 public bodies. This could miss opportunities to deliver the wider social, environmental and benefits through, for example, a wider regeneration project or longer-term strategy to assemble land which is in multiple ownership.
  • 2.6. We do not support proposals that would allow the Government to order sales of land where temporary uses cannot be identified for unused land which has an intended future use. Ordering a sale where temporary uses cannot be identified, not only risks undermining longer term development strategies for local areas, but also does not guarantee that the land will subsequently be brought into effective use to deliver local community benefit.
  • 2.7. We strongly support the principle that those interested in developing local authority land engage with local authorities before any request is made through the Right to Contest/Regenerate. Early engagement helps to foster a co-operative approach to the delivery of possible new uses on land that local authorities wish to dispose of as part of their overall asset management strategies.
  • 2.8. We would also like to see an increased focus from the Government on incentivising developers to bring forward sites which have been granted planning permission as well as those that have been allocated in Local Plans but which have not yet been brought forward to planning application stage. Councils approve almost nine in 10 planning applications, yet more than a million homes given planning permission in the last decade have not yet been built. There is also land for more than one million homes already allocated in Local Plans which developers have not yet brought forward to planning application stage.
  • 2.9. Councils are committed to growth and new housing where it is needed, but have limited powers to actually ensure development happens once planning permission has been granted. Longstanding vacant, derelict land and buildings can have a profound impact on local areas, including on health, the environment, economy and community.
  • 2.10. We would like to see a streamlined compulsory purchase process to acquire (at pre-uplift value) stalled sites, sites where developers do not build out to the timescales agreed with a local planning authority and longstanding vacant derelict land and property which is causing blight. Consideration should also be given to the introduction of financial penalties, for example council tax charges on developers where sites are not being built out in a swift and timely manner.
  • 2.11. The Government should also consider the learning from the work of the Scottish Land Commission and their Vacant and Derelict Land Taskforce in developing a strategic approach to tackling vacant, derelict and underutilised land and buildings across different ownership arrangements. As a first step, this could include collecting and making publicly available data on such sites and their ownership, which would act as an important baseline for future activity and policy and fiscal interventions.

Response to the consultation questions

Q1: Do you consider the Right to Contest useful?

Yes/No – please provide a reason for your answer.

No. As the consultation itself points out the Right to Contest has only been used 192 times since 2014, with only one direction to order disposal being issued. More than 75 per cent of the requests submitted under Strand 2 were also refused, largely because the public body had a use/intended use for the land or it was allocated in the Local Plan. A further 5 per cent were withdrawn and 14 per cent were not valid requests. This clearly illustrates that the current Right to Contest process is not for fit-for-purpose in its objective to support the redevelopment of underused or empty land in local areas. 

Q2: Do you think there are any current barriers to using the right effectively, and if so, how would you suggest they be overcome?

Yes/No – please provide details.

As the consultation points out, the Right to Contest was always designed to be an intervention of last resort, so it is perhaps not surprising that the number of times it has been used is limited.

The limited use of the Right to Contest may also be because other processes are already being used at a local level to manage the transfer of unused or under-used public body assets. For example, many local authorities have Community Asset Transfer policies which create an agreed approach that communities are able to follow and work within.

The One Public Estate (OPE) programme, which is jointly delivered by the LGA and Cabinet Office is also supporting public bodies to identify and release surplus land, with a particular emphasis on repurposing such land for housing and economic uses.

Since 2013, those LA's who have joined the OPE programme have disposed of 504 ha of land which has the capacity to accommodate 16,709 homes (as of December 2020). In addition, the Land Release Fund, delivered by the OPE programme and operating since 2018, has seen the release of land for just over 4,700 homes from 59 local authority sites, with 159 homes built as at December 2020. This demonstrates the ability and appetite for local authorities to put underused land to positive use.

It would be worth considering whether the Right to Contest (or a reformed version) is still needed at all given the extensive public sector land release programmes that have developed over the last few years, and continue to go from strength to strength.

Q3: Would a definition of unused or underused land be useful, and, if so, what should such a definition include?

Yes/No – please provide details.

If the Government is minded to introduce a definition of unused or underused land, it will need to be flexible enough to recognise specific local circumstances and enable disposal through locally approved disposal frameworks. There may be a wide range of reasons why land might currently be under-utilised including being part of a wider regeneration project, provision of utilities, legal covenants or provision of local biodiversity or amenity value. Government should double-check use of existing Government definitions to ensure consistency of use and to avoid any contradiction and confusion.

Local authorities will also need to be able to take into account, when considering whether to dispose of land, the impact of disposing of a site or part of a site (which may be split between owners that are not Schedule 16 public bodies) on the wider potential social and economic value that an alternative strategic development across the whole site and the land around it could bring. This would avoid a piecemeal approach to development which deals only with land that is owned by Schedule 16 public bodies.

The Right to Regenerate should not be used to expand privately owned property with no public access or community benefit e.g. where an applicant wishes to purchase public open land adjacent to their property to extend a private garden. In this case, the request should be automatically refused, with a clear explanation provided to the applicant.

Q4: Should the right be extended to include unused and underused land owned by town and parish councils? 

Yes/No – please provide a reason for your answer.

We would refer you to responses from town and parish councils. It will be important that any new burdens on relevant public sector bodies in dealing with enquiries and reporting requirements are fully funded. Consideration will also need to be given to the capacity and skills available in smaller public sector bodies to resource any new burdens.

Q5: Should the Government incentivise temporary use of unused land which has plans for longer term future use?

Yes/No – please provide a reason for your answer.

We do not support proposals that would allow the Government to order sales of land where temporary uses cannot be identified for unused land which has an intended future use.

There will be cases where temporary use of land may be appropriate, and these should be considered through the locally-led planning process, so that relevant material planning considerations, including local planning policies, can be taken into account. This also allows local communities to have a say on development that affects them.

Equally, there will be many reasons why a temporary use of the land is not appropriate or possible, including land contamination, proximity to neighbouring uses, flood risk or other environmental constraints, legal covenants and access limitations.

Ordering a sale where temporary uses cannot be identified, not only risks undermining longer term development strategies for local areas, but also does not guarantee that the land will subsequently be brought into effective use to deliver local community benefit.

The LGA’s recent Dealing with empty shops guide includes examples of councils facilitating ‘meanwhile’ and ‘pop-up’ uses in empty properties, in order to temporarily fill vacant property until it is permanently brought back into commercial use. These types of approach can help to manage blight and foster an environment for testing ideas. Such uses can also be important components of long-term strategies, through testing out longer-term aspirations, albeit they are necessarily short-term in themselves.

Q6: Should the Government introduce a requirement for local authorities to be contacted before a request is made?

Yes/No - Please provide a reason for your answer.

We strongly support the principle that those interested in developing local authority land engage with local authorities before any request is made through the Right to Contest/Regenerate. Early engagement helps to foster a co-operative approach to the delivery of possible new uses on land that local authorities wish to dispose of as part of their overall asset management strategies. However, conversely, we are concerned that the new requirement could result in an uplift in the amount of enquiries that local authorities have to respond to, placing additional burden on already stretched resources. Any new burdens on local authorities in dealing with enquiry and reporting requirements will need to be fully funded. This could be achieved through new burdens funding from Government or alternatively enabling local authorities to charge a fee for requests for information on council-owned land on a cost-recovery basis.

Q7: Should the Government introduce a presumption in favour of disposal of land or empty homes/garages where requests are made under the right? 

No.

We do not support the proposal that the Secretary of State will be given powers to order disposal of local authority land unless there is a compelling reason not to do so. This removes decision-making from local authorities and risks undermining local asset management strategies. If the Government is minded to take this proposal forward it will need to be clear what the parameters for ‘compelling’ are – the reasons that local authorities will not be disposing of land will vary across the country and it will be important that all the relevant factors are considered in any decisions that the Secretary of State makes. There will also need to be robust conditions and evidence in place to accompany the disposal of any land to an applicant through the Right to Regenerate. This will ensure that the applicant will put the land to an agreed new use, that meets or exceeds local plan policy requirements and that is delivered within specific timescales. The Government should also introduce a mechanism to return any land disposed of through the Right to Regenerate back to local authority ownership where it continues to be underused or under-utilised outside of the agreed timescales.

Consideration should also be given to introducing a time-limited exemption from the Right to Regenerate for councils that have recently undergone or are undergoing re-organisation, to enable them to rationalise their new asset bases.

Q8: Do you agree that the Government should require these publicity measures where requests are made under the right?

Yes/No- Please provide a reason for your answer

Whilst we support the principle of transparency and publicity may help to raise awareness to others interested in developing local authority land, we consider that the proposal for quarterly reports on the number of preliminary enquiries received and the display of physical and electronic publicity where a request to release a site has been submitted, is an unnecessary and disproportionate burden on local authorities. If the Government is minded to take forward these new requirements, which will be a new burden on local authorities, this will need to be fully funded by Government or there will need to be a mechanism for councils to charge a fee to applicants on a cost-recovery basis. We would also suggest any reporting is done annually rather than quarterly to minimise the administrative burden on already stretched local authorities.

Local authorities should also have the flexibility to decide the most appropriate publicity arrangements for letting communities know about requests that have been submitted for the release of a site, and in a way which is proportionate to the scale and nature of the proposed development.

Q9: Should Government offer a ‘right of first refusal’ to the applicant as a condition of disposal?

Yes/No – Please provide a reason for your answer.

Please also include what you believe would be a reasonable timeframe for the expiration of the right of refusal.

Yes, in principle. But this should be limited to specific circumstances. This could include where the applicant’s proposal includes a clear business plan and complies with ambitious local policies for developing former public land, but they have specified they would need additional time to raise additional funds because of financial constraints. The applicant would need to show evidence of this and the right of first refusal should not be applied if the applicant is in partnership with a private sector organisation who has the necessary resources available, as this could disadvantage other policy-compliant requests.

Any right of first refusal should not apply where the Right to Regenerate is used to expand privately owned property with no public access or community benefit e.g. where an applicant 6

wishes to purchase public open land adjacent to their property to extend a private garden. In this case, the request should be automatically refused, with a clear explanation provided to the applicant.

Q10: Should the Government impose conditions on the disposal of land? And if so, what conditions would be appropriate?

Yes/No - Please provide a reason for your answer.

Yes. There will need to be robust conditions and evidence in place to accompany the disposal of any land to an applicant through the Right to Regenerate process.

This will need to ensure that the applicant is legally bound to put the land to an agreed new use, that meets or exceeds local plan policy requirements, and that is delivered within specific timescales.

The Government should also introduce a mechanism to return any land disposed of through the Right to Regenerate back to local authority ownership where it continues to be underused or under-utilised outside of the agreed timescales.

Consideration should also be given to introducing a time-limited exemption from the Right to Regenerate for councils that have recently undergone or are undergoing re-organisation, to enable them to rationalise their new asset bases.

Q11: Do you have any additional suggestions regarding reforms that could improve the effectiveness of the Right to Contest process?

Please explain your answer.

No further comment.

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