Privatising Land in England

By Prof Antonia Layard, Professor of Law (University of Bristol Law School)

While land law often hits the front pages of the Daily Mail (“Homeowners back from vacation encounter a motormouth squatter”), two recent books have taken the UK broadsheets by storm. The first is Brett Christophers’s The New Enclosures: The Appropriation of Public Land in Neoliberal Britain, the second is Guy Shrubsole’s Who Owns England: How We Lost Our Green and Pleasant Land. Both books are concerned with transparency (and the niceties of land registration) as well as why ownership matters.

Building on years of work by Kevin Cahill, Doreen Massey, Andy Wightman, Anna Powell-Smith and James Meek – along with Domesday Book, the 1873 Return of Owners of Land and Lloyd George’s 1910 Valuation Office Survey – Shrubsole is able to build a picture of property dominance by a few, estimating that half of England is owned by less than 1% of the population (at least 30% of whom are aristocracy and gentry). According to Shrubsole, the state now owns 8% of England’s land mass, although it used to be much more. In fact, Christophers estimates that approximately two million hectares, or ten percent of the Britain landmass, have left the public sector for private ownership between 1979 and 2018.

So why does land ownership matter? As all law students learn, land ownership brings with it rights and privileges (as well as obligations, in respect of taxation and occupiers liability). Unless there are specific exceptions, the land is mapped as right to roam access land, for instance, or as a highway, the landowner can ask any person to leave: refusal converts entry into a trespass. As owners, landlords can charge market rents to let out their houses, developers can – subject to planning – transform former libraries and convert them into flats. Land ownership brings prestige, power and the potential for profit.

When land is privatised there are four key consequences of this “denationalisation” (apparently, Margaret Thatcher’s preferred term in the 1980s, but considered too negative to be electorally popular in the 1980s United Kingdom). These are the loss of public law framework and management, the implications for housing, the consequences for open and communal spaces and – perhaps the most important of all – the loss of a discourse of public property, where citizens can question land use and exclusion.

Taking the legal framework first, it is evident that publicly owned land (to keep things simple, it’s best to think of this as land owned by national and local governments, rather than becoming embroiled in the intricacies of the Crown Estate and Royal Parks) is subject to public law. While in land law terms there is no difference between privately and publicly owned land – the rules on freeholds, leaseholds, mortgages, easements and registrations apply regardless – the requirements of public law apply. Public landowners must not act ultra vires, they must observe the public sector equality duty as well as “best value” requirements, and are public authorities for the purposes of human rights (under section 6 of the Human Rights Act 1998). As was held in Fewings, where Somerset County Council wanted to forbid stag hunting on its land in the Quantock Hills, there are limits to how a Council can act. There the Court of Appeal overturned the council’s landowning decision, upholding Laws J. finding that the Council “enjoys no such thing as an unfettered discretion”. Prohibiting hunting was a step too far (although bylaws to that effect would have been fine).

As well as being subject to public law, publicly owned land is subject to a wealth of government guidance including as part of the increasingly centralised Government Estate and as assets for the purposes of HM Treasury’s Managing Public Money. This guidance exhorts public sector organisations “to take stock of their assets from time to time and consider afresh whether they are being used efficiently and deliver value for public funds. If there is irreducible spare capacity there may be scope to use part of it for other government activities, or to exploit it commercially for non-statutory business.” Efficiency is key.

The second consequence of privatisation affects housing. It is thought that nearly two million homes have been sold under the right to buy, the largest privatisation of all. While the tenure shift from renting to owner occupation can be life-changing, recent estimates suggest that approximately 40% of right to buy properties are now in the private rental sector, with 40-50% privately rented out in London, and 70.9% in in Milton Keynes (“the buy to let capital of Britain”). For this 40%, the differences between socially and privately rented homes are generally threefold: (1) higher rents (particularly in London and other popular rental markets); (2) less security of tenure and (3) poorer quality of accommodation. Taking the estimate at face value, this means that 800,000 homes that used to have lower rents, more security and were more likely to be of habitable quality, are now in the private sector, bringing profit to individual landlords, with tenants paying more for less.

This change in privatising housing is exacerbated by the fact that of the new land released for up to 160,000 homes by 2020, where privatisation and sale is routinely justified as addressing housing shortages, only a small proportion will be socially rented. Almost all central land deals have been concluded with private developers with affordability considered under planning rules rather than using central government ownership to transfer land directly to affordable housing providers or community land trusts. While many local authorities are trying to use their disposals to develop more affordably, central government departments have preferred private contractors who make their own development choices.

The third consequence of privatisation is the loss of particular spaces that are publicly owned. Libraries, allotments and playing fields, whilst not always public, are generally so and have born the brunt of austerity cuts and “repurposing”. While the numbers on library closures are disputed (staggeringly, the Department of Culture, Media and Sport keeps no central records on the basis that these are local decisions), the Chartered Institute of Public Finance and Accountancy estimates that 127 libraries closed in 2018 alone. When libraries are closed, parks are privatised – either for years or weeks – or playing fields are sold for housing, land that was once accessible by many becomes inaccessible, reducing yet again the spaces in which it is possible to be in public at all.

The fourth consequence of privatisation of land is discursive. For while in land law terms the differences between public and private land ownership are limited, public landowners can be called on to justify their decisions to exclude or limit use in a way private – particularly corporate – landowners are not. The decision by Haringey Council to licence Finsbury Park for the Wireless Festival, for example, has been widely challenged by residents concerned about noise, exclusion and damage. While the legal arguments that the festival should not have gone ahead in 2016 failed, the discursive arguments continue to resonate. Haringey are required to justify how much they have charged and to what use the profit will be put (it is to be reinvested in Finsbury Park). These are questions that would simply not be asked of a private landowner.

Privatisation is widespread, happening at an extraordinary scale whether by sales of freeholds, leases or licences. If leases for retail regeneration are for 250 years, the silver is gone for a really long time. When freeholds are sold, the family silver is gone for good. Network Rail, a public sector company, recently sold the spaces beneath the railway arches for £1.46 billion to Telereal Trillium and Blackstone Property Partners, who have created t, the single largest small business landlord in England and Wales. It is unlikely that these spaces will ever come back under public control (or scrutiny). Profit will not only be not justifiable but expected: corporate owners are accountable to their shareholders.

Land privatisation rests on profoundly ideological practices and it is brilliant that writers such as Christophers and Shrubsole are bringing this to light. The metaphorically small state produces a physically small state. Long may land ownership – and land law – continue to be front page news.

For references see:

Antonia Layard “Privatising Land in England” in Journal of Property, Planning and Built Environment Law (2019) forthcoming

Antonia Layard “Shopping in the Public Realm: The Law of Place” Journal of Law and Society (2010)