Betrayal of principle – or a misunderstanding?

  • Author : Martyn Gowar
  • Date : June/July 2011
ABOUT THE AUTHOR: Martyn Gowar TEP is a Partner in McDermott Will & Emery UK LLP

The other day, I commended one of my firm’s Associates in New York about a very clear report that he had done for me. He came back and said the following:

‘The less US law derives from a basic set of fundamental principles and the more it becomes a dumping ground for disconnected Congressional acts, the harder it is to give an accurate summary and application of the law that will be useful and comprehensible to a non-specialist reader.’

If we substitute the words ‘Congressional acts’ with the words ‘government initiatives’, then we won’t be very far from the situation applying in the UK, or indeed many other countries.

One of these fundamental principles is the right to own property. English law has been built around the enforcement of property rights, but over the past 50 years or so, starting with the growth of planning controls, there has been an insidious movement to assert ‘public’ property ownership. Examples most recently are the right-to-roam legislation and the coastal access legislation, and now we have the proposal of a community right to buy. Coupled with an insouciance towards theft of property as shown by the sentences imposed on such offenders as do get brought to court, the impression is firmly taking hold that individual property rights are being eroded by default. Is this the government’s intention, or is it a lack of discipline in considering principles underpinning society?

In the light of these observations, I have to confess that I am very concerned with the proposals in the Localism Bill for a community right to buy (or was it really meant to be a community right to bid?).

‘English law has been built around the enforcement of property rights, but over the past 50 years, there’s been an insidious movement to assert “public” property ownership’

There is a consultation process going on at the moment about this topic and some of the unintended consequences (I hope they are unintended consequences) are coming to light. The Bill was intended to encourage communities to take more control of their own destiny, and few would find that hard to support. The extension of this, however, was that assets over which the community have enjoyed privileges could be subjected to a right on the community’s behalf to bid for them if the estate owner wished to sell. One can see that, for the local village sports ground or even the village hall, that is not an unreasonable thing to do, even though the proposed 18-month limit for the community to raise the money is somewhat harsh for a landowner who may be in the position where he has no alternative but to sell for one reason or another.

But how far does the definition of community assets extend? It may apply to footpaths across an estate or to forestry, but also to the landed estate house and grounds that have been open to the community to enjoy, or a piece of land that the community decides should be ‘protected’, but that covers exploitable minerals. It could mean that the sale of an estate that included a public footpath could be put on hold. One other twist in the tail: as currently suggested, this would also cover not just a sale by a landowner, but a transfer by a gift or inheritance.

All of these are serious incursions into property ownership. Is this really what is intended or is this a monumental misunderstanding? For those who are property lawyers, the implications seem to me to be immense.


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