Senior local authority lawyers criticise bureaucracy of proposed Right to Buy

The Association of Council Secretaries and Solicitors (ACSeS) has hit out at the government’s Community Right to Buy scheme, warning that the proposal could create an extensive bureaucracy that is “substantially disproportionate” to the problems ministers are seeking to prevent.

In its submission to a government consultation, ACSeS expressed concern that the government had described the scheme as a ‘right to buy’ when the draft legislation and the proposed regulations amount to no more than a right to make an offer.

“It will no doubt fall to local authority lawyers to explain why the ‘right to buy’ is not actually a right to buy, and that the lengthy and detailed statutory arrangements provide no guarantee that community assets will remain as community assets,” the submission said.

It added: “The extensive bureaucracy that the draft legislation and proposed regulations create is substantially disproportionate to the problem they seek to prevent; that is, the disposal of a community asset without an alternative community offer being made.”

The ACSeS submission also said:

• The vast majority of land and buildings likely to come within the definition of a community asset will not be at risk of disposal for purposes other than community use
• Land and buildings coming within the definition may be regarded as a community asset although, if within public control, they are often a liability to the public purse. “This of itself does not necessarily mean that the asset is at risk”
• Local authorities are already amenable to transferring community assets to local organisations where there is the capacity and enthusiasm to take on the responsibility for them
• The proposed requirements to create a substantial registration process and public register of all land and buildings coming within the definition of community asset is disproportionate to the number of community assets likely to be at risk
• “As with many applications to register land as village greens to prevent or delay disposal or development”, the registration of a community asset under the proposals will become a delaying mechanism in circumstances where there is no intention or capacity for a community group to make an offer.

The ACSeS submission said it continued to be the public perception that the local authority is the appropriate custodian of land and buildings used for public purposes, and there continued to be circumstances of local authorities being obliged to assume trusteeship of community assets where trusts are no longer able to find trustees to take on the responsibility.

“Indeed, it is sensible for local authorities to contemplate the possibility of such a return to public ownership of community assets at the time of their transfer to a community body,” it said. “They should, at least, consider the means of restricting any future disposal to provide for continued public use, and include provision for this within the terms of disposal, to ensure continued public usage in the longer term.”

ACSeS said use of covenants or disposal by long lease are examples of ways of ensuring this longer-term continuity.

The association warned that the public registration arrangements proposed could have the converse effect to that intended.

“Local authorities may well be put under pressure to acquire community assets at risk of private disposal,” it said. “Landowners may also see registration as an opportunity for disposal and possibly scope for attracting public funding because of the threat of loss of a community asset.”

ACSeS argued that the government could achieve its objectives more readily by adopting a simpler and less bureaucratic approach that does not create an added cost to local authorities currently looking to make savings in public expenditure.

The association said it accepted that some former community assets may have been lost to public use, but claimed that – so far as it was aware – there had been no detailed research as to whether some form of community control might or might not have provided the means for any continued public use.

“We do not see proposals that would establish a substantial and time consuming bureaucratic infrastructure as a way of resolving this issue,” it concluded.

Philip Hoult