Out-Law / Your Daily Need-To-Know

Out-Law Guide 2 min. read

Land assembly for garden communities

Many garden communities, including the required supporting infrastructure, need to be delivered on multiple pieces of land each owned by different groups or individuals.

This means that there needs to be coordination of landowners and developers to ensure that there is adequate provision of facilities and services to serve a new community, avoiding unnecessary duplication, and that these can be delivered at the appropriate time in the project. Detailed land referencing will be required to get a full understanding of the underlying land ownerships so that thought can be given to how facilities and services can best be provided for.

At the same time, because the value of land across the whole garden communities site can vary greatly depending on what it is used for – such as where town houses are situated compared to where lower value housing or other infrastructure is situated – equalisation agreements may be needed to ensure each of the different landowners can share in the benefits of future increases in land value across the site and thereby incentivise their cooperation.

Detailed land referencing will be required to get a full understanding of the underlying land ownerships so that thought can be given to how facilities and services can best be provided for

In formulating a land strategy, the landowner and promoting local authority, if different, will need to consider how it will seek to work with other landowners and developers to coordinate their proposals and whether it is necessary for the local authority to acquire land interests. Ultimately, if the land cannot be acquired through negotiation, the local authority may need to exercise compulsory purchase powers to acquire the land and/or use appropriation powers to override title defects.

Typically, land may be needed to be assembled for a wide variety of purposes, including where:

  • Third party highways land or land for utilities infrastructure is required for the scheme;
  • Some land is required for a comprehensive scheme but the owners or developers with interests in such land are not collaborating or achieving appropriate equalisation in terms of their contribution to the overall scheme in sharing the infrastructure burden as well as realising the development potential; and
  • There is a need to rid the land title of rights or interests in that land that negatively impinge on how it can be used, or of ‘ransom strips’ – these being small areas of land in proximity to a development site that developers need to cross to deliver their development but for which they may be charged to use.

Where agreements cannot be reached between landowners and any existing developers, local authorities may need to exercise their powers to issue compulsory purchase orders (CPOs). Sometimes these are underpinned by a developer’s indemnity or development agreement.

The relevant CPO powers need to be chosen and the process would typically take 18 to 24 months to deliver. The precise “scheme” for which the CPO is to be promoted must be set out clearly to establish the “scheme world” and “no scheme world” compensation positions; as well as enabling the ‘compelling case in the public interest’ for the powers to be authorised. Any existing consents granted on any land to be acquired will require specialist valuation and the deliverability of those consents examined. A robust funding, viability and planning case will be required to show how impediments to delivery will be overcome. The Department for Levelling Up, Housing and Communities (as it now is) produced updated compulsory purchase guidance in 2019 – this should be followed by those seeking to exercise CPO powers.

There is a need for local authorities and advisers to work alongside commercial property agents on the private treaty negotiations with landowners, assisting with the drafting of offer letters and drafting the suite of contractual acquisition documents, which need to incorporate robust “non-objection” provisions to ensure that any landowner that sells its land to the local authority does not subsequently seek to object to either the planning permission being sought, or the CPO being made.

Effective and proactive project management is vital to the success of implementation of the land assembly strategy.

Pinsent Masons has asked 70 market participants about garden communities, and you can find out what they said in our results (40-page / 5MB PDF). And you can find out more about a step by step approach to garden communities in this guide (40-page / 6MB PDF).

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