Privatising land in England
| DOI | https://doi.org/10.1108/JPPEL-03-2019-0009 |
| Date | 08 July 2019 |
| Published date | 08 July 2019 |
| Pages | 151-168 |
| Author | Antonia Layard |
| Subject Matter | Property management & built environment,Building & construction,Building & construction law,Real estate & property,Property law |
Privatising land in England
Antonia Layard
University of Bristol, Bristol, UK
Abstract
Purpose –This paper aims to analysethe extent to which privatising –or denationalising land –haslegal
and policy effects.
Design/methodology/approach –It applies the law in context scholarship to the question of land
privatisation.
Findings –Of all the recent privatisationsin England, the most valuable, and yet leastrecorded, is of land.
Accordingto one estimate, two million hectares or 10 per cent of the Britain landmass, left the public sector for
private ownership between 1979and 2018. Privatisations include land that is sold, leased or wherea public
body changes its status. This paper aims to explore these privatisations, considering them as
denationalisations,concluding that the effects are most significant in housing where the differences between
social and private renting in relation to rents, the security of tenure and housing quality are striking.
Moreover, although other public law restraints on the state-owned property are often limited,they are also
still significant, facilitatingscrutiny, particularly in combination with thepublic sector equality duty or site-
specific duties for libraries, allotments or playing fields. All the sites disposed of to private developers,
landlordsand companies have lost these protections.
Originality/value –This is the first time this question has been considered in this way from a legal
perspective.
Keywords England, Land, Privatization, Private property, Public property, State property
Paper type Research paper
1. Introduction
Of all the recent privatisations in England, the most valuable, and yet least recorded, is of
land. According to one estimate,two million hectares, or ten percent of the Britain landmass,
left the public sector for private ownership between 1979 and 2018 (Brett, 2018). Many of
these sales have been piecemeal. The housing Right to Buy programme consists of nearly
two million individual sales, raising an estimated £40bn by 2018 (House of Commons
Library, 2018b).The One Public Estate programme,now in its fifth iteration, facilitatessales
of surplus local authority assets, aiming to raise £615m in capital receipts by 2019-2020
(Local Government Association,2019). Central government sales are escalating fromthe five
“main land owning departments”[1], including releasing land for 235,000 (almost all
privately developed) new homes. The Ministry of Defence, the government’s largest
landowner, is executing the Better Defence Estate Strategy to reduce the built estate by 30
per cent by 2040[2]. NHS PropertyServices Ltd Land aim to release a further £2bn worth of
property[3]. Network Rail, a public sector company, recently sold the spaces beneath the
railway arches for £1.46bnto Telereal Trilliumand Blackstone Property Partners, who have
created the Arch Company,the single largest small business landlord in Englandand Wales
(Trillium, 2019). Centralgovernment sales of over 1,000 properties have already added £2bn
to government coffers and saved £300m per annum in running costs, including significant
reductions in the numbers of civil servants[4]. The metaphorically “small state”is also a
physically small state.
The privatisation of land is not solely an English phenomenon, occurring in
Canada, France and Italy as well, albeit in distinctive ways (Adisson and Artioli, 2019;
Privatising
land
151
Received21 March 2019
Revised6 April 2019
Accepted8 April 2019
Journalof Property, Planning and
EnvironmentalLaw
Vol.11 No. 2, 2019
pp. 151-168
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-03-2019-0009
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/2514-9407.htm
Heather Whiteside, 2018). In England, land sales have taken place at many points in
history, not least when Henry VIII sold off monastic lands to private buyers. Monarchs
frequently gave away land to favourites and centuries of enclosures translated complex
forms of common ownership into private property. In recent years sales have been
ideologically associated with privatisations in the 1980s (British Airways, BP, British Gas,
British Steel and British Telecom), the 1990s (British Rail) and occasional later (Royal Mail,
but not the Forest Estate or Her Majesty’s Land Registry in the 2000s). Under Margaret
Thatcher’s governments, the aims of privatisation were to reduce the size of the state-
controlled sector of the economy, to increase the proportion of assets owned privately and
to promote efficiency. While Thatcher, who disliked the term, used privatisation to refer to
the sale of state-owned industry through public share offerings (Stevens, 2004),
privatisation also includes both the sale of council houses (“right to buy”) and the private
provision of public services (often carried out as compulsory competitive tendering, for
example, in parks, on highways and refuse collection and later, under labour governments,
under “best value”tendering) (Pinch and Patterson, 2000;Martin, 2000).
Today, the central government policy of land privatisation aims to reduce the size of the
national estate to maximise capital receipts, reduce running costs and release land for
housing. The National Estate Strategy is explicit in its aim to be more “commercial and
professional”[5]. In addition to release land for housing, the central government also
facilitates sales by local authorities through the One Public Estate programme creating
partnerships “set to create 44,000 new jobs, release land for 25,000 homes, raise £615m in
receipts from sales, and cut running costs by £158m”by 2020[6]. Local authorities
themselves also initiate sales, not least to address the financial effects of extraordinary
financial austerity:local government finance has been reduced by an estimated 56.3 per cent
between 2010/11 and 2019/20[7]. Finally, the right to buy housing programme continues
apace. The scheme was “reinvigorated”in England 2012, with increased discounts (up to
£108,000 in London and £80,900 outside of London)[8], despite having ended in Scotland in
June 2016 and in Wales in January2019[9].
Each strand of privatisation –the sale of industry,assets, services or council housing –
has implications for land with the transfer of state property into private ownership. The
1980s and 1990s privatisations reversed many of the post-war 1945-1951 nationalisations,
and it is, of course, possible that subsequentpolicies might renationalise services and assets.
Yet these sales raise the questionof how, from a land law perspective, privatisations matter.
What are the legal implicationswhen land is transferred from state to private ownership?If
people are still housed, have spaces to come together or enjoy, does it matter if the
landowner is a government or private body? The answer is that there are legal differences,
most striking in housing but also relevant to the use of open or negotiable spaces and for
sites where human rights can be exercised. More profoundly, there is a change in property
discourse when land is owned by the state, where there is discursive, if not legal, space for
arguments about collective interest, conceptions of value and transparency. While
corporations are primarily accountable to their shareholders, governments –both central
and local –are accountable to their electors and citizens, creating very different discourses
around land ownership and use.
To consider privatisation in the context of land, it is useful to understandthe changes as
“denationalisation”, an alternative word for privatisation butone apparently considered too
negative to be electorally popular in the 1980s UK (Institute for Government the
Privatisation of BritishTelecom, 1984). Denationalisation captures the effects of selling state
property, rather than public property, a difficult term, which includes public access, open
commons and public goods (Page, 2018). State property is, according to C.B. Macpherson,
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