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.