Public land and the “Right to Regenerate”

Right to Contest powers have been around in some form or another since the 1980s and, although not often used successfully, give the public the right to request that certain bodies sell unused (or underused) publicly owned land. It was originally anticipated that these rights would reduce anti-social behaviour by removing areas deemed to cause "blight", and thereby increasing the attractiveness of an area.  If the relevant requirements are satisfied, the Secretary of State can order the relevant body to dispose of the land identified.

The Right to Contest applies both to land owned by central government (Strand 1 land) and that owned by certain public bodies including local authorities, Transport for London and the Metropolitan Police Authority (Strand 2 land). The proposed new rebrand of the Right to Contest will only relate to Strand 2 land.

The consultation states that 192 Right to Contest requests have been submitted in respect of Strand 2 land since 2014, with only one direction to sell having been issued in this time. The consultation paper links this high refusal rate with the ability of the relevant public body to defeat a request by citing a use (or intended use) of the land or to allocate it within the Local Plan. The failure of the process to deliver seemingly available land for regeneration - specifically given the significant housing need in the country – has focussed the government’s attention on the need for reform.

A more effective right

Key proposals on which views are sought include:

• incentivising the temporary use of unused land by ordering the sale of land if a temporary use isn’t identified. It is hoped that this would ensure that land is better used in the short term, even if it has a longer term intended future use (for example for uses specified within the Local Plan);

• requiring those that make a request under the Right to Regenerate to demonstrate that they have contacted their local authority before making a request. This may mean that agreement can be reached without the need to resort to the formal process but, even if not, it is hoped that this will ensure that local authorities are more prepared to respond promptly to requests as they come in;

• offering applicants the right of first refusal over the sale of the land, to increase the chances that local community groups are able to acquire land in their area for local purposes; and

• introducing a presumption in favour of disposal, so that the burden shifts to the public body to demonstrate that they need to retain the land for future use. This could have the biggest impact in terms of increasing the amount of land made available for sale.

If disposals are ordered conditions can be attached, although this has never happened to date.  Views are therefore also being sought on whether the approach to this should change, for example making it a condition of sale that the purchaser commits to redevelopment.  

Any exceptions?

The proposals relate to England only and, as noted above, do not relate to Strand 1 land, owned by central government.

Next steps

The consultation remains open to responses until 13 March 2021, although the government’s response may well be delayed by the pandemic. In any event, the consultation has already reminded many people that these rights exist, which in itself could increase their uptake. However, it remains to be seen whether the proposals are enough for the Right to Regenerate to spark real change which benefits the community, or whether it’ll simply follow in the (unsuccessfully trod) footsteps of the Right to Contest.