My Lords, Amendment 77ZH introduces a new clause to provide a new procedure for the appropriation and disposal of open space land by local authorities. This does not apply to common land, for which there is already a different and better system.
The proposed new clause is a slightly modified version of the amendment I moved during the Committee stage of the Localism Bill on 28 June 2011. It amends the present Local Government Act 1972 procedure for the appropriation or disposal of non-common land open space, which dates from amendments made in 1980 to simplify the previous procedure. A local authority has merely to publish its intention in a local newspaper in two consecutive weeks and invite objections for its consideration. This can be done in private—for example, by a cabinet member who is under no obligation to give reasons for, or even publish, the decision. There is no right of appeal by the objectors. The land can then be used, sold or let for other uses free of all existing open space trusts and without regard to the fact that a park or recreation ground may have been gifted to or acquired cheaply—often, perhaps, with
major contributions from public appeals—by the council’s predecessor on trust for the perpetual enjoyment of the public.
The trust may have been imposed for a particular open space in a local Act of Parliament which authorised its acquisition, but most of these open spaces are now held under the general trust in Section 10 of the Open Spaces Act 1906. Others were acquired or appropriated under Acts which do not specify a trust. However, high judicial authority has decided that all are held on trust for the benefit of the public and are not simply council property easily available for any of its services or to sell off.
The leading judgment is known as the Brockwell Park case, which noble Lords will remember discussing during proceedings on the Localism Bill. The House of Lords decided Lambeth Overseers v London County Council in 1897. This was summarised by the Lord Chancellor, Lord Halsbury, as follows:
“One sentence was sufficient to dispose of the case—namely, that the public, for whom the County Council were merely custodians or trustees, were not rateable occupiers, and that there was no beneficial occupation of the property whatever”.
In the fuller judgment, Lord Herschell drew a parallel with the then recent Court of Appeal decision in relation to Putney Bridge. In other words, what is applicable to a highway is equally applicable to a park. However, the procedure for extinguishing any type of highway, whether motorway or public footpath, is by no means simple.
In a further judgement, slightly more recently in October 2012, the Court of Appeal held in Barkas v North Yorkshire County Council that land laid out and maintained as a recreation ground under Housing Act powers was,
“appropriated for the purpose of public recreation”,
and therefore local inhabitants indulge in lawful sports and pastimes by right and not as of right, as would be necessary to prove for the creation of a town or village green. This decision confirms that, if land acquired under other Acts for regeneration or major development is allocated for recreational purposes, it becomes equated with land acquired specifically for those purposes.
The present wording in the Local Government Act positively encourages breaking a trust imposed by the Open Spaces Act, never mind one implied by other Acts. If the land had been owned privately subject to a similar trust, it would be deemed to be held for charitable purposes and its use could not be so easily changed. It is surely wrong for a public authority to be encouraged in this manner, often in contradiction to its own planning policies. The proposed new clause is intended to rectify the situation.
During the Committee stage of the Localism Bill, my noble friend Lady Hanham was rather anxious about the provision for land in exchange. However, this was a standard requirement before the Local Government Act was amended in 1980 and remains where Section 19 of the Acquisition of Land Act 1981 applies. This is when compulsory purchase powers are used and in certain other cases such as for the appropriation of commons under the Town and Country Planning Act 1990. It is an important disincentive to choosing open space as a cheap and easy solution for obtaining other development requirements. Where major
regeneration is proposed, it is accepted that compulsory powers should be used to obtain the full site required. This may include new or enlarged open space under the CPO.
This is a complicated matter. I am grateful to the Open Spaces Society for its assistance in proposing this amendment and I look forward to the Minister’s reply. I beg to move.