Section 123(1) and (2) of the Local Government Act 1972 (“the 1972 Act”) empower a local authority to dispose of land held by it in any manner that it wishes, provided that – if the disposal is otherwise than by means of a short tenancy – the consent of the secretary of state is granted where the consideration is less than the best that can reasonably be obtained.
However, where the land consists or forms part of an “open space”, section 123(2A) of the 1972 Act obliges the local authority, before disposing of the land, to advertise its intention to do so in two consecutive weeks in a newspaper circulating in the area in which the land is situated. It must also consider any objections to the proposed disposal that may be made to it. The definition of “open space”, for this purpose, is to be found in section 336 of the Town and Country Planning Act 1990 (“the 1990 Act”). It is “any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground”.
In R (on the application of Galaxy Land Ltd) v Durham County Council [2015] EWHC 16 (Admin); [2015] PLSCS 17 one of the questions for the court was whether the defendant council had failed to comply with section 123(2A) of the 1972 Act when it granted an option to third parties to purchase a former school playing field belonging to it, situated about one mile away from the school itself.
The claimant contended that the land in question was an open space within the meaning given to that expression by section 336 of the 1990 Act. In support, it submitted evidence demonstrating that for upwards of forty years members of the public had used the school playing field for recreation.
The court held that the defendant council was in breach of section 123(2A) of the 1972 Act. Earlier authority established that the necessary user could be as of right, or merely by permission that had not been withdrawn. The evidence here was such as to constitute a bare licence and, absent reasonable notice of termination having been given and expired, the defendant council had been obliged to comply with the requirements of section 123(2A) of the 1972 Act.
John Martin is a planning law consultant
