Transparency, Options to Develop Land and Community Empowerment: Time for Action
Written by Carey Doyle, for Community Land Scotland
Transparency and land development
There is overwhelming evidence that early engagement in land use planning is positive for communities, for the quality and delivery of development, and for the public interest (Scottish Land Commission 2023).
The planning system provides a process for public engagement in land use planning; however, the earliest development stage is outside this process. Commercial land development often starts with a legal contract before entering the planning system, such as an option to buy land subject to planning permission, or agreement to obtain planning permission and then sell the land on the open market. The Land Commission's new research ‘Transparency of Options Agreements’ (Diffley Partnership 2023) has confirmed that there is no publicly available information on where developers plan to build in future, despite these legally binding contracts in place.
Research has shown that a significant portion of strategic development land in England is at the pre-application stage (55%, (McAllister, Shepherd, and Wyatt 2023)); similar may be true in Scotland. How can the public meaningfully engage with land use development when the initial legally binding step, which may apply to the majority of development land, is secret and can endure for 20+ years?
These issues with lack of transparency go beyond engagement, and extend to Community Land Rights and Community Empowerment. Scottish communities' rights over land, in fulfilment of their Social, Economic and Cultural Rights, are hampered by lack of transparency of legal contracts for development.
These are not just housing issues – these are land reform issues. If 70% of all new residential development land in England was controlled by 10 volume house builders in 2015 (Bradley 2023), what is the situation in Scotland? These are issues of scale and concentration of landholdings, and monopolies, and will be compounded by Scotland's already unequal land patterns. We know that land monopolies impact on local communities (Glass, Morran, and Thomson 2019). The problem is there is no good information as to the extent of the issue. We can address this through improved transparency.
At Community Land Scotland we work with communities across Scotland who are buying land and buildings to meet community needs. In our work option agreements come up consistently in areas of development pressure once communities start to work proactively over land.
Communities have a growing list of policy tools to support them to be proactive over land and buildings. Local Place Plans are a new one, as well as Rights to Buy, Asset Transfer Rights from Public Bodies, and support to purchase land through the Scottish Land Fund. But using all of these successfully requires knowing landowner ownership and legal development agreements like options.
Without transparency of who has a legal agreement in place to control land, and for how long, communities are operating at a disadvantage and Rights are unable to be used. Understanding who owns and controls land and buildings is necessary for community empowerment.
Lack of transparency leads to unrealistic land values
Lack of information on development scale and price agreed through legal agreements is likely to be providing unrealistic ideas about land values, with the result of land being kept off the land market (Savills 2020). Inflated expectations about land values impact communities and individuals seeking to buy. Benefits accrue to those who own land and are not under pressure to release it. Meanwhile, harm is accruing to those attempting to get into the market. This is going to be worse in areas of monopoly landownership.
Options agreements restrict Community Rights
If an option to develop land is in place, under 39A of the 2003 Land Reform Act communities can't register an interest in buying this land. Frustratingly, information about options is not available until the community has gone through the time-intensive process of applying to register an interest in purchase. At that stage, the landowner clarifies that there is an option on the land, and the community’s application is declined.
Communities are wasting their time on Community Right to Buy applications for optioned land, finding their projects stalled due to lack of information about options agreements, or they are deciding not to proceed because of an assumed option agreement. Examples of these situations are in the anonymous case studies below. (The case studies are anonymous because these communities would like to proceed with these purchases when the options expire).
A Glasgow community group is considering purchasing a derelict building, with the aim of providing needed childcare and greenspace. The land is under an option agreement for commercial development, with a non-disclosure agreement also in place. The community group can't ask the existing landowners about the option agreement until the non-disclosure agreement expires. Timescales aren't clear. The community could potentially get their business planning underway, but their main source of funding, Scottish Land Fund, doesn't fund feasibility work where there is no engagement with the landowner. The community project is stalled. Meanwhile, the land lies derelict and childcare need is unmet.
Another example is from a village within commuting distance of the central belt cities. The community group wanted to buy fields connecting a watercourse to a woodland to assemble a community woodland. After working on this for some time, the community group realised that the land was likely to be under option agreement for housing development given historic planning applications. The community group had to decide if they should continue with their project, on the basis of little substantive information over who controlled the land, and with the knowledge that Community Land Rights were unlikely to be available. They gave up.
We have spoken with communities about many different types of land which are likely to be under legal agreement for development, including agricultural land, woodland, derelict buildings, hill land near windfarms, and property owned by Local Authority arm’s length external organisations. The Land Commission's report highlights the implications of options transparency on housing and community engagement, but the issue applies more generally-- this impacts many types of development, and not just community engagement but also Scottish Government policy commitments like community empowerment and net zero carbon.
Inchinnan Development Trust is developing an ambitious woodland and biodiversity action plan in Renfrewshire, on land under development pressure near Glasgow Airport. They are doing this work without knowledge of key pre-planning legal agreement in place: “Contracts are tying up land in the long term, when we need to act now for the climate emergency. How long should land be lying, when we want to act? “ Maggie Morrison, Inchinnan Development Trust
Ambition and delivery
Ambitious steps to increase land data transparency can be delivered by Scottish Government to benefit the public interest and are needed to implement key policy commitments like community empowerment, addressing housing need, brownfield development, and delivering net zero.
There are several possible ways to improve transparency, and we look forward to collaborating on delivery. We support the Land Commissions’ proposals for a searchable map. This needs to be accurate, and there should be a legal requirement for registration or uptake is likely to be low. This would be an appropriate addition to the Register of Controlling Interest in Land. The Land Register also needs to be completed as soon as possible, with any legal agreement like an option registered on the title—it is our understanding that this is required in England and Wales.
The Land Commission research calls for more research, more consultation. While we need to do things thoroughly, action is needed now. The implementation plans do not appear to be onerous-- specific timescales and actions are needed now. We can include key provisions in the upcoming Land Reform Bill.
We have a growing body of evidence on the benefits of transparency in land data, and clear alignment with policy goals. Are developers flexible enough to embrace change in the public interest? Is there the political will to act?