Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of the Arboricultural Association.

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The AAs response to 'Right to Regenerate: reform of the Right to Contest'

Author:  Arboricultural Association
Last Updated:  12/03/2021
Right to Regenerate: reform of the Right to Contest

The Arboricultural Association has responded to the Right to Regenerate Consultation, which you can read and download below. The deadline for responses is 13th March 2021. The Association encourages all of its members and partners to participate in the consultation process in the hope that collectively we can work together to make this important initiative a success which we can all support and endorse.


The Arboricultural Association (AA) welcomes the chance to contribute to this consultation and would like to take this opportunity to highlight some significant concerns around the Right to Regenerate (the Right) which we feel need to be addressed. This document provides a more detailed assessment of our objections, but they can be summarised as follows:

  • The Right must be an opportunity for communities, not a charter for developers.
  • As they stand these proposals will increase inequality within and between communities.
  • It must be made clear how these proposals will be compatible with other planning legislation.
  • No distinction is made between accessible and inaccessible public land.
  • The terms ‘underused’ and ‘inefficient’ need to be defined, and must not mean land that hasn’t been developed.
  • To be truly equitable, private land must be included in the Right.

The language around ‘underused’ land is concerning. Land may have a purpose or a social value which is not immediately obvious. Examples include areas which are used as informal public open space, or spaces which may be delivering biodiversity benefits. As it says in the government’s National Planning Policy Framework, “Planning policies and decisions should recognise that some undeveloped land can perform many functions, such as for wildlife, recreation, flood risk mitigation, cooling/shading, carbon storage or food production.”

‘Beauty’ is an abstract concept which cannot be defined by the government of the day. Whilst it is true that poorly-maintained public space can attract antisocial behaviour, it is also recognised that well-maintained public space can reduce certain kinds of crime and improve community cohesion. The answer to the perceived problem set out in these proposals may, therefore, be to increase investment in land, rather than force it to be sold.

The Right proposes the conversion of ‘inefficient’ space to ‘bring it into better economic use’. Who is to be the arbiter of what is or is not an ‘efficient’ use of space? The environmental, social and economic benefits of trees and green space are now well acknowledged, but how can trees compete with development if the argument is to be fought exclusively on economic terms? Not everything with value has a price which can be communicated in pounds and pence, and it is not always possible or desirable to ‘optimise’ our public assets, including the urban forest and open space.

One important distinction which appears to have been overlooked in the proposals is the difference between land which is accessible to the public and land which is not – the difference, for example, between an area of grass used informally by the local community, and a derelict municipal building. This distinction must be taken into account if the Right is not to threaten our public open spaces; those areas so highly-valued by our communities and so vital to the physical health and mental wellbeing of the nation before, during and after the pandemic. Furthermore, if the intention is indeed to allow the community to take ownership over neglected land and buildings then the Right must surely be extended to include private, as well as public, assets; opening for public improvement the swathes of land and undeveloped buildings held in land banks, often with unimplemented planning permission.

Social inequality is rife in the UK. The AA is well aware of the issues of green inequity and the disparity of access to green space between communities, often associated with socioeconomic factors. The Right risks exacerbating this problem, creating conditions in which wealthy neighbourhoods have the opportunity and means to purchase public land for their own use, whilst those less well-off are unable to do so and end up losing their local ‘underused’ land for sale and private development. Planning, environmental and land use policies should be designed to reduce, not increase, inequality in our society. The proposed Right to Regenerate does not meet this fundamental social objective.

Consultation questions

Q1: Do you consider the Right to Contest useful? Yes/No – please provide a reason for your answer.

YES. In principle, the Right to Contest is a good thing. As with anything, there could surely be improvements. However, this does not necessarily mean that changes of the scale proposed or intended in the Right to Regenerate consultation would be appropriate or desirable.

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.

N/A. It is impossible to say from the figures available what specific barriers there might be. The fact that since 2014 only 1 out of 192 requests have been successful means nothing without supporting information. It may well be that 191 of these requests were inappropriate rather than that the process itself is flawed. The purpose of Right to Regenerate seems to be more concerned with weakening the definition of what is or isn’t appropriate, than with actually improving the process.

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.

YES. A definition would of course be helpful. One of the key questions here must be whether or not a piece of land is ‘underused’ in the context of its intended land use, and of course whether or not its intended land use is actually appropriate. A piece of land intended for future development might not be being used for development, but could have habitat and recreation value. Equally, a small open space that could comfortably accommodate a dwelling, but which has meadow grass and a tree or two growing on it, will be contributing to local amenity. Neither example should be taken to mean that they are underused. In the development of such a definition, a broad coalition of stakeholders must be consulted and engaged to reflect the very different views of ‘use’ and ‘beauty’ that exist,’ Each case must then be assessed on its own merits, driven by local considerations rather than a blanket national approach.

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.

NO. Based on the fact that the Right to Regenerate proposals do not seem appropriate for anywhere, it should not be extended to town and parish councils.

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.

NO. No, in principle, but this could depend on the particular land in question. If it is Local Authority-owned land which is inaccessible to the general public, for example a site where development by the Local Authority is planned in the long term but until that time nothing is to be done, then encouraging a temporary use might be a positive step forward and bring additional benefits from the land for communities. However, the main intention behind this clause seems to be to circumvent the primary reason for rejection of the existing Right to Contest process, i.e. that the Local Authority has a plan for it. Each case should be judged on its own merits and there will surely be some Local Authorities who are sitting on public land for their own purposes and could use some encouragement to put their plans into action. However, others will be dependent on factors such as finance; factors which will not necessarily be helped by threats to sell should an appropriate temporary use (which will also cost money) not be found. Furthermore, who is to determine what is or isn’t an appropriate ‘temporary use’? Once again this would need to be determined at a local, not national, level.

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.

YES. This would create additional work for the Local Authority (although under the 2011 Burdens Doctrine, this should be compensated for), but it would seem to offer an additional safeguard whereby the Local Authority would at least have an early warning of the attempt to implement Right to Regenerate, even if they cannot prevent it at this stage. In some cases the Local Authority will not even be aware that they own the land in question, so this notification would also be useful in that regard. The processes would need to be carefully determined and applied consistently (for example, which department in each Local Authority would need to be contacted, with how much notice etc.?) but it would afford an additional layer of protection for public land. This would not apply, of course, in cases where the Local Authority was the applicant – for example through a commercial development subsidiary.

Q7: Should the government introduce a presumption in favour of disposal of land or empty homes/garages where requests are made under the right? Yes/No – Please provide a reason for your answer

NO. Absolutely not. The implications of this to Local Authorities and the public they serve are potentially devastating. Few Local Authorities will have the resources to draw up management/future use plans for each piece of land under their ownership – and if it is decided that inclusion within a Local Plan is enough to demonstrate planned use then there seems no value in introducing the Right to Regenerate at all. A situation would likely arise where developers would submit mass applications/requests to multiple Local Authorities, safe in the knowledge that there is no way they would be able to defend all of them. It could precipitate a very significant transfer of land ownership from public to private hands, and it is the most vulnerable communities and most under-resourced Local Authorities which would be hit hardest. An additional consideration is those Local Authorities which have set up their own development company – steps must be taken to ensure that there is no possibility of the Right to Regenerate being misused by Local Authorities seeking to make a profit out of public land. For example, by cutting funding to maintain it, allowing it to go into disrepair and then seeking to use the Right in order to develop it for a profit to subsidise underfunding elsewhere.

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

N/A. There are advantages and disadvantage to this, and it would have to be very carefully considered. It is of course proper and correct that the general public is made aware of what is happening to the land owned by their Local Authority on their behalf. However, the specifics of this publicity as proposed in the consultation suggest that this would be a vast administrative burden on already under-resourced Local Authority officers.

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.

NO. A right of first refusal should be made to the local community so that the default position is improvement to the public realm for the good of the community. Large-scale developers will have far more resources than local people to be able to move quickly and make multiple applications, and it is not right that they should then have the right of refusal to do with them what they will.

In cases where community groups are seeking to purchase the land it should not be offered at market value, but at a reasonable value. To quote the National Community Land Trust Network, “what is reasonable should reflect the alignment of a council’s planning policies, corporate asset management plan and other spatially focused policy objectives to determine the correct valuation basis for the disposal.” If land is to be sold for development then it is reasonable that it carries a higher sale value than if it is to be, for example, a community garden.

However, the process also needs to be equitable and must not be loaded against less well-off communities. In wealthy areas, ‘underused’ public space might be sold to communities who could afford it, and in poorer areas the land would go straight to developers – exacerbating inequality and green inequity and increasing the likelihood of those communities ultimately being priced out of living in those areas. The fact that this is to be a discretionary power held by the Secretary of State (at “his” discretion, as the consultation document says) is also of concern. Presumably, the Secretary of State will not be getting involved in the vast majority of cases where a small piece of land or individual building were at stake, so how often would the community actually be offered the opportunity to purchase it?

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. Conditions would seem like a good idea, provided there was scope for these conditions to specify actions such as the area should still be open to the public, or would bring with it a certain level of public amenity, or green space or tree canopy etc. Alternatively it could be useful to specify that the land is used for housing rather than, say, retail or commercial (or vice versa).

It will be important to clarify how far these conditions would be comparable – and how strongly they would stand up – in the face of other legislation and regulations such as the Planning White Paper and National Planning Policy Framework (NPPF). Paragraph 97 of the current NPPF says that existing open space, sports and recreational buildings and land, including playing fields, should not be built on unless: a) an assessment has been undertaken which has clearly shown the open space, buildings or land to be surplus to requirements; or b) the loss resulting from the proposed development would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location; or c) the development is for alternative sports and recreational provision, the benefits of which clearly outweigh the loss of the current or former use.

If a piece of public land were disposed of on condition that there be, say, 100m2 of public open green space, then how would that hold up at the planning stages if the new owner decides that to do so would not be compatible with their redevelopment intentions? And if the land in question has already been considered for development in the context of the Local plan but has been discounted for a specific reason, then could the Right to Regenerate overrule these local considerations at a later date?

Another question is whether or not this kind of ‘condition’ would be seen as a gateway to allowing permitted development, i.e. that once disposed of for development, a development will be allowed to be built without going through all of the normal stages of the planning process. This is a worrying concept, and one which is of considerable concern in the light of the widespread deregulation proposed in the Planning White Paper.

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

Not enough distinction has been made in these proposals between Local Authority land which is accessible to the public, and land which is not. It would be entirely inappropriate for the same measure of ‘usefulness’ to be applied to, for example, a neglected recreation ground, an old municipal car park and a vacant office building. The differences between these land types are considerable and this must be recognised in the final formal of the Right to Regenerate.

The Arboricultural Association would echo the recommendation made by the National Community Land Trust Network – that the scope of the Right to Regenerate be broadened to include privately-owned land (excluding primary residences), which is often as much of a problem as land owned by Local Authorities. Such a step would bring considerable benefits to many communities which are blighted by privately-owned land and buildings which have been left neglected, for example in those cases where developers purchase buildings – sometimes listed buildings – and allow them to deteriorate to the point where demolition and rebuilding is seen as the only possible outcome. The same principle applies to land banking by developers, and those who obtain planning permission but do not then implement it. Figures from the Local Government Association suggest that in 2017 alone there were more than 400,000 unimplemented planning permissions in the UK.

As Secretary of State Robert Jenrick has said of the Right to Regenerate, “millions of people will now be able to buy that empty property, unused garage or parcel of land and turn it into something good for them and their community.” If this is genuinely the ambition, then private, as well as public, land must be included in the reforms.

Download the response

The consultation