A recent case (R (on the application of Day) v Shropshire Council & Others [2020] EWCA Civ 1751) has highlighted the requirement that, before a Local Authority disposes of land it holds as ‘Open Space’, it must comply with the advertising procedure laid down by the Open Spaces Act 1906.
If it does not and the acquirer knows the land is open space then, in the words of the Court of Appeal:
“we see nothing unfair, disproportionate or odd about (the acquirer) in such circumstances being saddled with land (and remaining) subject to the statutory trust for public use and enjoyment; … an obvious route would be a transfer back to the local authority…“
Acquiring open space from a Local Authority
Open space is defined in the 1906 Act as:
‘any land, whether enclosed 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’
The land may be designated as open space in a local development plan or identified as suitable for local green space designation in a neighbourhood plan. It may be listed or suitable for listing as an asset of community value. However, it cannot be registered as a ‘town or village green’ – these are subject to their own code of protection.
So, if you are acquiring open space or land from a Local Authority, obtain confirmation that you will not be ‘saddled with’ with land which remains subject to the statutory trust for public use and enjoyment.
How can Nelsons help?
If you have any queries regarding the subjects discussed in this article, please contact either Martin Jinks (Partner, Solicitor & Notary Public) or Mary Gharmount (Senior Associate & Solicitor) in our expert Commercial Property team.
Please call 0800 024 1976 or contact us via our online form for further information.
