255: Contractual controls on land consultation

The UK government is seeking views on proposals to make data in respect of ‘contractual control’ interests in land (eg options, conditional contracts, pre-emption agreements) publicly available. The idea is to increase transparency around contractual arrangements which are not currently recorded in detail at the Land Registry.

The Contractual Controls on Land Consultation proposes to publish a dataset of the key terms of contractual control agreements under Part 11 of the Levelling Up and Regeneration Act 2023.

What types of contractual control agreements would be published?

The proposal is that following written agreements entered into after 6 April 2021, plus those assigned or varied at any time after this date, would be published:

• option agreements;
• pre-emption agreements;
• conditional contracts; and
• promotion agreements.

Regulations are expected to be implemented in April 2026, and so there will be a requirement to retrospectively publish agreements entered into after 6 April 2021. In addition, anything entered before 6 April 2021 but varied or assigned after that date will need to be published.

When and how would such agreements become publishable?

The beneficiary of the contractual control interest would be obliged to provide the Land Registry with relevant information within 60 days of the date of the agreement (or assignment or variation, if applicable). The information required would include the parties’ names, the type of agreement, the location of the land, the date of the agreement, the termination date and any rights to extend it.

This information would need to be provided to the Land Registry prior to registration of a unilateral notice, agreed notice or restriction. Such notices and restrictions are commonly used to protect these interests at the Land Registry, but would not be capable of protection until the contractual control interest is declared.

Failure to provide the relevant information (without reasonable excuse) would be a criminal offence punishable by up to two years imprisonment and penalty fines would be payable for knowingly or recklessly providing false information.

Implications

There is currently no legal obligation to publish information on contractual controls on land. The government sees this as another means of ensuring transparency in land ownership, and seeks to unblock development for communities and SMEs.

However, the proposed rules would be another hurdle for developers to overcome. It could slow down housing development by giving more scope and time for setting out objections to planning applications.

Those who promote and gain planning permission on land before selling to a third party, or those who use options and pre-emptions within their development business or as part of a complex transaction, will need to carry out an extensive audit of all their contractual arrangements since 6 April 2021.

If you wish to respond to the consultation you can submit your views here. The consultation closes on 20 March 2024 and the expected commencement date of the regulations would be 6 April 2026.