The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
This article was first published on Lexis®PSL Personal Injury on 24 February 2015.
Community Rights programme has too many obstacles for local people, says CLGC report, LNB News 03/02/2015 127
The government should give local people more opportunities to take on and run pubs, post offices and community centres and to build community housing, shape local services and bring public land back into use, says a report by the Communities and Local Government Committee (CLGC). The CLGC's report calls on the government to strengthen four of its Community Rights--to bid, build, challenge and reclaim land--to allow communities a greater say in what happens to the buildings, services and land in their area.
What's the background to this report?
Under LA 2011 the coalition introduced three new community rights:
- the right to bid (in relation to assets of community value)
- the right to challenge (in relation to local authority provided services), and
- the right to build (which involves community-led development)
The government also 'co-opted' a fourth community 'right'--the public request to order disposal (PROD)--as set out in the Local Government, Planning and Land Act 1980, and re-branded it as the 'community right to reclaim land'. In February 2015, the House of Commons Select Committee for Communities and Local overnment published its report into the exercising of those rights to date.
What does this report tell us about the successes and failure of the four key community rights?
The report tells us that the rights have been a mixed bag.
Right to bid
The right to bid, involving the registration of assets of community value, has been by far the most widely used, though even here the take-up varies wildly from place to place. The process of registering an asset has been a success--the criteria are relatively straightforward, the form to fill in not (usually) too complex.
Right to build
The right to build is widely seen as too complicated ('you might just as well apply for planning permission', is an often heard comment from clients) and take-up has been sparse. Funding support for the right was swiftly broadened to encompass community led development generally as take up was very low.
Right to challenge
The right to challenge is also seen as potentially problematic (and anecdotally we are aware that local authorities do not, generally, either welcome or encourage formal expressions of interest). There is some evidence that the existence of the right has helped stimulate useful conversations between communities and commissioners.
Right to reclaim
Finally, the right to 'reclaim land' has also seen relatively little take up--PROD continues to languish in relative legal obscurity.
What have been the challenges in utilising community rights?
For the right to bid, the lack of any appeal for nominating groups if an application to register is unsuccessful is a major issue. All that is left is either a fresh application, or judicial review--which is expensive and not ideal from anyone's perspective.
The second part of the right (the actual bid) has been less used than listing, partly because it does not arise unless the owner wishes to sell the asset in question, and also partly because the process is, in reality, fairly toothless--there is no compulsion on an owner to do any more than simply wait out the moratorium before they sell.
The complexity of the right to build and the potentially adversarial nature of the right to challenge are both also seen as issues.
There are also issues around awareness--there is still very little knowledge about PROD or the associated 'right to reclaim land', which the Committee felt partly explained the low level of take up.
How have these community rights affected the planning and building landscape?
The right to bid has had the biggest impact and we have already seen some appeals to the First-tier Tribunal by unhappy owners against listing which, in the cases that we have seen, has been all about listing affecting sale value or ease of development. This is contested territory--any move to strengthen the right to bid further would not be likely to be popular with landowners.
The support to community organisations involved in development has had some positive impact, despite the actual take up of the right to build being very low.
Could the use of the rights benefit from some adjustments?
Supporters of the rights suggest that the introduction of a longer moratorium for the right to bid would help, as would the introduction of a right to appeal against a refusal to list by a nominating body.
In our view, there should be a duty (certainly on public sector landowners) to at least consider any community bid before accepting any other bid for an asset at the end of a moratorium.
We agree with the Committee that the right to build could sensibly be collapsed into the neighbourhood planning process (also introduced by LA 2011), and the right to challenge could be re-worked to encourage more informed commissioning by local authorities.
How can lawyers best assist communities in understanding and utilising these rights?
The legal profession has been more active than you might think. Anthony Collins Solicitors has been supporting Locality with queries from the My Community Rights website, as we have done since 2007 on Page 3
community asset transfer. Lawyers working with the public sector need to understand the operation of the rights, and all firms that support charities or the third sector should know enough about the rights to advise on them, and support and encourage their exercise.
Interviewed by Nicola Laver.
For more information
Contact David Alcock
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