Open space land and advertising requirements

R (on the application of Day) v Shropshire Council case

In this case, the Supreme Court ruled that a buyer who had acquired land for development from Shrewsbury Town Council had acquired it subject to statutory trusts imposed by the Open Spaces Act 1906. The Council had failed to adhere to the disposal procedure relating to open spaces in the Local Government Act 1972, however neither the selling local authority nor the buyer were aware that the land had ever been an open space.

A statutory predecessor body to the Council acquired the land in circa 1925 as a recreation ground for local residents. The land was therefore required to be held subject to statutory trusts under the 1906 Act “…with a view to, the enjoyment thereof by the public as an open space…and for no other purpose…”. The land was then used for various purposes throughout the years, including for an allotment and as a tree nursery. The Council then obtained planning permission for residential development and sold the land to a developer.

As the Council were unaware of the statutory trust, it neglected to comply with the necessary procedural requirements namely to advertise its intention to dispose for two consecutive weeks in a local newspaper. The developer was not told of the status of the land by the Council and did not uncover it from its own investigations and due diligence.

A local resident who opposed the development investigated the history of the land and discovered that the land had been an open space. He sought a judicial review of the planning decision on the basis that a material consideration had been ignored, being that the land remained subject to the statutory trust. The Supreme Court agreed and the planning permission for residential development was quashed, leaving use of the land now in the ownership of the developer limited to an open space. The 1972 Act provides that disposals of land are not invalid as a result of a failure to follow the necessary procedural requirements, but those same provisions do not operate to extinguish the rights enjoyed by the public under the statutory trusts.

So what do councils need to look out for when considering the acquisition of open space for development?

The term “open space” has a broad meaning and for these purposes, and as defined in section 336 Town and Country Planning Act 1990 as “any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground”. Further, the 1906 Act defines this as: “any land, whether inclosed or not, on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden or is used for purposes of recreation or lies waste and unoccupied.”

Further, the Public Health Act 1875 refers the land being used for “public walks or pleasure grounds”. In general terms ‘open space’ status could be ascribed to any land to which the public have access and they use for recreational purposes. Where a local authority is intent on disposing of a parcel of land, it would do well to try to establish the basis on which it was acquired and would be expected to check local historical sources etc., where its own records are not complete.

To avoid expensive and time-consuming research, the simplest solution would be to assume, where there were the merest of doubts, that the land concerned has open space status. The next step would be to advertise the intention to dispose in a local newspaper for two consecutive weeks. Then consider any representation made, acting reasonably, in a Wednesbury sense to reach a final decision. Where a local authority has complied with the required procedure, the land will be freed from the statutory trust, and a purchaser will be free to develop as it wishes, subject to obtaining planning permission, of course!

If you have any queries regarding this article or you require some advice regarding complaints against public authorities please contact Nathan Holden or another member of our Local Government team.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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