It’s time to give your views on the government’s plans for a public register of contractual controls on land
By
Vanessa Horn
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The government plans to create a freely accessible dataset that provides a clearer view of contractual controls on land. Improving transparency around who controls land in England and Wales is the underlying principle.
The consultation will be of particular interest to those involved in real estate development. It follows on from a call for evidence on data on land control in 2020 and the coming into force of Part 11 of the Levelling Up and Regeneration Act 2023 providing another regime to improve transparency regarding land ownership and control.
The Land Registry already registers the ownership of land and that information is publicly available, but information relating to agreements that are used to control land short of outright ownership is not easily accessible. The proposal is to capture and publish information relating to contractual control agreements, that is agreements that are used to control future use and intended to facilitate the future development of land.
The consultation runs until 20 March 2024 and seeks views on the government’s plans and the proposed regulations to be made that will implement them.
The ‘who’, ‘what’, ‘where’ and ‘when’
The proposed regulations would require the disclosure of information by an ‘undertaking’ (such as a business, charity or body exercising a public function) about certain agreements entered into with a landowner that are intended to secure land or property for residential, commercial or mixed-use development.
The types of agreement in scope include option, pre-emption and land promotion agreements, and conditional contracts. The agreement must relate to registered land and subsist for 12 or more months, or if shorter, must include an entitlement for the grantee to extend the agreement. Overage and clawback agreements, and restrictive covenants are not within scope. Agreements made for the purposes of national security, defence or to facilitate finance and loan agreements will be exempt from the regulations.
Information to be disclosed includes details of the parties, the type of agreement, date it was entered into, an indication of its length (start date, end date, any rights to extend and longstop date), its territorial extent, the Land Registry title number(s) but, as currently proposed, does not include disclosure of commercially sensitive information (such as prices and deposits).
The required information will need to be provided to the Land Registry within 60 days of the agreement being entered into and the dataset must be kept up to date.
The regulations are expected to come into force in April 2026 and will apply to new agreements entered into after the commencement of the regulations. The regulations will apply retrospectively to existing agreements entered into after April 2021 or existing agreements entered into at any time which are varied or assigned after the date of commencement of the regulations.
Implications
It is important that developers understand the implications of the proposed regulations.
Developers will need to be more transparent about agreements they enter into with landowners regarding potential development land. No minimum site size is specified. Site assembly may be more difficult for all types of development.
The mandated transparency around agreements relating to potential development land means developers may face heightened scrutiny. This may increase competition from landowners and developers alike resulting in more favourable terms. Developers may also experience earlier challenges and objections to their development proposals.
The retrospective effect of the regulations means developers should consider reviewing their existing agreements to ensure compliance.
There will be consequences for non-compliance. If information regarding an agreement is not provided, the Land Registry will refuse to register a notice or restriction against the relevant title. It will be a criminal offence punishable by imprisonment or a fine not to comply with the requirement to provide information or for knowingly or recklessly providing false information.
Vanessa Horn is a lead practice development lawyer in the property team at Irwin Mitchell LLP
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It’s time to give your views on the government’s plans for a public register of contractual controls on land
By
Vanessa Horn
Share this:
The government plans to create a freely accessible dataset that provides a clearer view of contractual controls on land. Improving transparency around who controls land in England and Wales is the underlying principle.
The consultation will be of particular interest to those involved in real estate development. It follows on from a call for evidence on data on land control in 2020 and the coming into force of Part 11 of the Levelling Up and Regeneration Act 2023 providing another regime to improve transparency regarding land ownership and control.
The Land Registry already registers the ownership of land and that information is publicly available, but information relating to agreements that are used to control land short of outright ownership is not easily accessible. The proposal is to capture and publish information relating to contractual control agreements, that is agreements that are used to control future use and intended to facilitate the future development of land.
The consultation runs until 20 March 2024 and seeks views on the government’s plans and the proposed regulations to be made that will implement them.
The ‘who’, ‘what’, ‘where’ and ‘when’
The proposed regulations would require the disclosure of information by an ‘undertaking’ (such as a business, charity or body exercising a public function) about certain agreements entered into with a landowner that are intended to secure land or property for residential, commercial or mixed-use development.
The types of agreement in scope include option, pre-emption and land promotion agreements, and conditional contracts. The agreement must relate to registered land and subsist for 12 or more months, or if shorter, must include an entitlement for the grantee to extend the agreement. Overage and clawback agreements, and restrictive covenants are not within scope. Agreements made for the purposes of national security, defence or to facilitate finance and loan agreements will be exempt from the regulations.
Information to be disclosed includes details of the parties, the type of agreement, date it was entered into, an indication of its length (start date, end date, any rights to extend and longstop date), its territorial extent, the Land Registry title number(s) but, as currently proposed, does not include disclosure of commercially sensitive information (such as prices and deposits).
The required information will need to be provided to the Land Registry within 60 days of the agreement being entered into and the dataset must be kept up to date.
The regulations are expected to come into force in April 2026 and will apply to new agreements entered into after the commencement of the regulations. The regulations will apply retrospectively to existing agreements entered into after April 2021 or existing agreements entered into at any time which are varied or assigned after the date of commencement of the regulations.
Implications
It is important that developers understand the implications of the proposed regulations.
Developers will need to be more transparent about agreements they enter into with landowners regarding potential development land. No minimum site size is specified. Site assembly may be more difficult for all types of development.
The mandated transparency around agreements relating to potential development land means developers may face heightened scrutiny. This may increase competition from landowners and developers alike resulting in more favourable terms. Developers may also experience earlier challenges and objections to their development proposals.
The retrospective effect of the regulations means developers should consider reviewing their existing agreements to ensure compliance.
There will be consequences for non-compliance. If information regarding an agreement is not provided, the Land Registry will refuse to register a notice or restriction against the relevant title. It will be a criminal offence punishable by imprisonment or a fine not to comply with the requirement to provide information or for knowingly or recklessly providing false information.
Vanessa Horn is a lead practice development lawyer in the property team at Irwin Mitchell LLP
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