Strategic Land Contracts – A Public Register?
Michael Higgin, the Head of FSP’s Strategic Land Contracts team highlights the government’s consultation to produce a public register of “contractual controls” over land.
The Ministry of Housing, Communities and Local Government has begun a consultation on government proposals to create a publicly available register of options, pre-emption rights and conditional contracts over registered land. Their aim is to make it easier to identify people who have interests over land which may be available for development. Another goal they say is to help smaller developers see what land is already “sewn up” and what land is “free” to explore for development
At the moment it is possible to note and protect these types of contracts by way of a “unilateral notice” on the Land Registry, which provides minimal information. The proposal is to insist that such interests are protected by way of an “agreed notice” which provides more information and includes copies of the relevant documentation (although redaction is permitted, so long as certain essential information is still included for public view). The proposal does not extend to individual options over residential property for use as a domestic residence (unless such options are conditional upon obtaining planning consent) or certain other limited categories of options. It seems to be a relatively modest proposal. However, the aim is clearly to capture information about pre-development contracts in a publicly accessible format, so developers (and their lawyers) can expect their competitors to see more of what they are doing and how they do it. It is consistent with the government’s moves to spur development by making changes in the planning system.
Interestingly the growing trend for landowners to put land into the planning process through a “promotion agreement” seems to have passed the government by in this context as it is not mentioned anywhere in the consultation request. We might expect promotion agreements to eventually fall into the disclosure net, along with options and pre-emptions, unless HMG’s focus is only on what can be actually built, but by then many SME builders who like to get their own planning permissions may have missed the boat on a site, or waste time researching a prospective site which turns out to be already under promotion.
The consultation expires on 30 October 2020. Details can be seen here of the rationale for the consultation and the 26 questions that the government posit to flush out whether this change is worthwhile and what its impact might be: www.gov.uk/government/consultations/transparency-and-competition-a-call-for-evidence-on-data-on-land-control.
Anybody who is interested in this area, and in particular property developers and land promoters, should consider the consultation request and whether they wish to make a submission in response or to give us comments that we might collate and submit.