Memorandum by The Open Spaces Society
(TCP 19)
1. INTRODUCTION
1.1 The Open Spaces Society, formally the Commons,
Open Spaces and Footpaths Preservation Society, was founded in
1865 and is Britain's oldest national conservation body. It campaigns
for the protection and increase of public enjoyment of commons,
town and village greens and other open spaces and public rights
of way, in English and Welsh town and countryside.
1.2 We are grateful for the opportunity to submit
this memorandum to the Sub-committee. We are pleased to learn
that Dr Hazel Conway is also submitting a memorandum and are confident
that this will adequately cover many important aspects. This enables
us to confine us to confine our comments to the complex legal
and administrative problems that have come to our attention, assuming
that Town Parks, as the main subject of this inquiry, have the
widest possible meaning.
1.3 We quote below from a number of Acts of
Parliament but it must be borne in mind that there are many other
provisions—national or local—which qualify or extend
the powers and rights relating to any particular park. The national
or Greater London legislation which particularly covers the matter
is contained in many Acts contained in 10 subject volumes of Halsbury's
Statutes. The Society must, therefore, disclaim any possibility
of the memorandum being able to give a correct interpretation
of the law.
1.4 If the Sub-committee so desire, we shall
be pleased to try (within practical limits) to supplement the
memorandum with further details on any particular aspect and by
oral evidence.
2. WHAT IS
A PARK?
2.1 There is no single statutory or general
understanding of what is meant by a park. Historically, it was
land enclosed, often around a palace or mansion, for the preservation
of deer and landscaped for the pleasure and recreation of the
Sovereign or landowner. Unenclosed manorial waste land, common
grazings and town and village greens have been used for public
recreation from time immemorial but, until the nineteenth century,
the only truly public parks were, probably, London's Royal Parks.
2.2 During the Second World War, iron railings
were removed from around most public parks and many still remain
unfenced or accessible at all times. The nearest to the Palace
of Westminster, St James's Park, is an example. On the other hand,
urban commons and greens have been landscaped and provided with
various facilities. There is, therefore, less distinction in the
public mind between the categories and the definition in the next
paragraph comes close to what is generally understood.
2.3 The only statutory definition of "park"
is in section 15 of the Local Government Finance Act 1988, in
order to confirm its exemption from non-domestic rating. For that
purpose a park "includes a reference to a recreation or pleasure
ground, a public walk, an open space within the meaning of the
Open Spaces Act 1906 and a playing field provided under the Physical
Training and Recreation Act 1937", and it must have been
provided or be under the management of the Crown or a local authority
and be available for free and unrestricted use by members of the
public, ignoring any temporary close at night or otherwise.
2.4 Section 20 of the Open Spaces Act 1906 states
that the "expression `open space' means 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 of the remainder of which is laid out as a garden or is
used for purposes of recreation, or lies waste and unoccupied."
2.5 The 1988 Act definition was derived from
earlier rating legislation and the parliamentary draftsmen appear
to have overlooked that section 4 of the Physical Training and
Recreation Act 1937—which related to playing fields—had
been replaced by section 19 of the Local Government (Miscellaneous
Provisions) Act 1976, which does not mention "playing field"
although it covers that term. (See paragraph 4.7 below.)
2.6 While the rating exemption is now enshrined
in legislation, it was originally derived from case law which
gave public parks a special status distinct from other property.
Rates are applied to beneficial occupation and, in what is known
as the Brockwell Park case (Lambeth Overseers v. London County
Council, [1897] A.C. 625), the House of Lords decided that
the Council as owners of the Park were not occupiers but "merely
custodians or trustees to hold it and manage it for the use of
the public". This was later applied to all such areas whether
or not they were subject to a specific statutory trust.
2.7 In addition to section 20 of the Open Spaces
Act 1906 (which should be read in conjunction with section 10,
set out in paragraph 4.3 below) there are other statutory definitions
of "open space". The most well-known is in section 336(1)
of the Town and Country Planning Act 1990 where it means "any
land laid out as a public garden, or used for the purposes of
public recreation, or land which is a disused burial ground."
This definition applies for the purposes of the Local Government
Act 1972 (paragraph 6.6 below) and there is a similar one in the
Acquisition of Land Act 1981 (paragraph 6.1 below).
2.8 Following the creation of London Boroughs
under the London Government Act 1963, the statutory basis for
the management of open spaces owned by London councils (except
the Common Council of the City of London) was codified in the
Ministry of Housing and Local Government Provisional Order Confirmation
(Greater London Parks and Open Spaces) Act 1967. (1967 c.xxix.)
Under Article 6 of its Schedule, open space "includes any
public park, heath, common, recreation ground, pleasure ground,
garden, walk, ornamental enclosure or disused burial ground under
the control and management of a local authority".
3. COMMONS, TOWN
AND VILLAGE
GREENS
3.1 Many commons and town and village greens
are owned or managed by all levels of local authority for recreational
purposes by custom or under a variety of Acts, national, local,
or private. An act authorising the acquisition of a town common
often provided for extinguishment of the rights of common and
for fencing, enabling the land to be managed as an enclosed park.
Nevertheless, the inclusion of "Common" or "Green",
or a local term in the name, kept alive the tradition of the original
status. Many (especially in Greater London) were registered under
the Commons Registration Act 1965 and, in the absence of objection,
they have reverted to that status. Accordingly, legislation restricting
new buildings or fences on commons must then be taken into account.
3.2 The opposite also happened. The definition
of "town or village green" in section 22 of the Commons
Registration Act includes "land which has been allotted by
or under any Act for the exercise or recreation of the inhabitants
of any locality". This was sometimes overlooked during the
registration period and some recreation allotments were not registered.
Therefore, by section 1(2) of that Act, they are deemed not to
be a town or village green. Nevertheless, the original statutory
allotment provision remains in force. A major example of this
is in paragraph 4.2(a) below.
3.3 The Law of Property Act 1925, section 193,
gives the public rights of access for air and exercise over the
following types of common not subject to other statutory provisions—
(a) any metropolitan common (see paragraph
3.4 below);
(b) wholly or partly within a borough or
urban district as it was immediately before the coming into force
of the Local Government Act 1972 (1 April 1974); or
(c) outside the above areas, where an owner
has entered into a voluntary deed, but these were, almost invariably,
revocable and subject to other qualifications.
As rights of common became disused over urban commons,
they (especially those under the control of local authorities)
often took the nature of a park in its widest sense.
3.4 The Metropolitan Commons Act 1866 (which
was the first significant product of the formation of our Society)
stopped further inclosure of any common in the then area of the
Metropolitan Police District—within about 15 mile radius
of Charing Cross—and provided for the making of schemes
of regulation. Some have, since, been acquired by local authorities.
Others remain in private ownership but are managed under a scheme
by the local authority. At present we are dealing with an example
of the latter where both the authority and the Church Commissioners,
the actual owners, had forgotten the true situation although it
is recorded in a confirmatory Act of 1882. The Council has persuaded
the Land Registry to give it the freehold absolute title and is
attempting to sell it for development.
4. ACQUISITION AND
TRUSTS
4.1 Local authority ownership of a park may
originally derive from an inclosure award, gift or purchase which
has been authorised under any of a large number of Acts of Parliament.
Most of these have been specific to a particular piece of land
or locality and, together with the instruments which subsequently
transferred the powers and duties through a succession of local
government reorganisations, are not easily traceable. Even when
the Act title, year and chapter is known, it may be difficult
to discover a copy of the Act itself. The legal departments of
current local authorities, such as London boroughs, often have
no record of all the legislation that still applies to their areas,
and their officers may have no idea that it exists or where it
might be found.
4.2 Examples of private or local Act provisions
are:
(a) Nottingham Inclosure Act 1845 (8 and
9 Vic c.7 (Private)) section 53—
" . . . the whole of the said Allotments
or pieces of Land containing Eighty Acres or thereabouts, shall
be appropriated as and for public Places of Recreation and . .
. shall for ever hereafter be held by the said Mayor, Aldermen
and Burgesses for the purposes aforesaid . . . "
This is well-known in Nottingham but see paragraph
5.4 below.
(b) Wormwood Scrubs Act 1879 (42 and 43 Vic
c.cix) Preamble—
". . . that the said common and
inclosed lands, amounting to 193 acres or thereabouts, should
be vested in the Metropolitan Board of Works. . . upon trust for
the perpetual use thereof by the inhabitants of the metropolis
for exercise and recreation. . ."
The London Borough of Hammersmith and Fulham
appears to be unaware of the implications of this and its registration
as a common. (See paragraph 6.9 below).
4.3 Gradually, towards the end of the 19th century,
general powers were given to local authorities to acquire land,
by agreement, for open space purposes and most of these were replaced
by the Open Spaces Act 1906 which is still the principal current
measure.
Section 10 of this states:
"A local authority who have acquired
any estate or interest or control over any open space or burial
ground under this Act shall, subject to any conditions under which
the estate, interest or control was acquired:
(a) hold and administer the open space
or burial ground in trust to allow, and with a view to, the enjoyment
thereof by the public as an open space within the meaning of this
Act and under proper control and regulation and for no other purpose;
and
(b) maintain and keep the open space
or burial ground in a good and decent state . . . "
4.4 For unknown reasons, there was not consolidated
into the 1906 Act the powers of section 164 of the Public Health
Act 1875, to acquire land "for the purpose of being used
as public walks or pleasure grounds". It is occasionally
still used in preference to the 1906 Act.
4.5 There is no authority in the 1875 or 1906
Act to acquire land compulsorily for these purposes alone. Public
open space is the only local authority service for which acquisition
by agreement is the only given option. However, a compulsory purchase
order may be made under the Local Government Act 1972 in conjunction
with the 1906 Act to achieve the same result. Land may also be
acquired under the Town and Country Planning or other Acts and
later appropriated to the Open Spaces Act.
4.6 A local authority may acquire (by agreement
or compulsorily) under the Countryside Act 1968, sections 6 and
7, land for a country park—"that is to say a park or
pleasure ground" for "the purpose of providing, or improving,
opportunities for the enjoyment of the countryside by the public".
4.7 Local authorities also have powers to acquire
land (by agreement or compulsorily) under the Local Government
(Miscellaneous Provisions) Act 1976, section 19, to provide such
recreational facilities as the authority thinks fit, and this
particularised outdoor facilities, including games pitches, but
without prejudice to the generality of the power. The provisions
replaced section 4 of the Physical Training and Recreation Act
1937, wrongly referred to in section 15 of the Local Government
Finance Act 1988. (See paragraph 2.5 above).
4.8 As a relic of the days when large council
estates were developed, the Housing Act 1985, section 12(1)(b),
allows a local housing authority, with the consent of the Secretary
of State, to provide and maintain recreation grounds in connection
with housing accommodation provided by them. These grounds, even
if still held on the Housing Account, are probably considered
to be ordinary local parks, especially as many of the houses and
flats on the estate will have been subject to the right to buy.
4.9 The Education Act 1996, section 508, requires
a local education authority to secure that the facilities for
primary, secondary and further education for their area include
adequate facilities for recreation, and allows them to establish,
maintain and manage (for example) playing fields, play centres
and playgrounds not appropriated to any school or other educational
institution. This is the only case where there is a statutory
duty to ensure the availability of such facilities and they can,
of course, take account of public facilities already available
in parks. There are other requirements and standards for playing
fields for individual schools which are not relevant to the present
inquiry.
5. IMPROPER PARK
MANAGEMENT AND
PLANNING CONTROL
5.1 Local authorities are under overwhelming
pressure to reduce their expenditure on all services and to increase
sources of income independent of Council Tax and Government grants
and restrictions. The Sub-committee will, undoubtedly, receive
other evidence which enlarges on the difficulties. While councils
have many powers in relation to recreation, they have no
duties except as local education authority and, even in
that capacity, the Government has been forced to exert considerable
pressure to try to prevent the disposal of school playing fields.
It remains to be seen how effective that will be.
5.2 For other open spaces there are no enforceable
minimum standards although every Local Plan prepared under the
Town and Country Planning Act (piously approved by each council
as planning authority) sets out desirable minima, usually as recommended
by the National Playing Fields Association, according to the size
and distribution of the population and of the open spaces in the
planning authority's territory. In almost every older urban centre,
the existing open space falls short of those standards. The Local
Plan for large towns will stress that existing open space or the
rare sites allocated for future open space, must not be developed
for other purposes or they will be lost for ever, and future residential
developments must allow for sufficient recreational space within
them. Therefore, the Local Plan declares, planning control will
strongly enforce these policies unless there are exceptional circumstances.
5.3 Unfortunately, these circumstances, in practice,
are far from exceptional. There are always other pressures, whether
financial or the claims of other public benefits. Councillors
can be particularly weak when requested to allow temporary uses
of parts of existing parks. They start accordingly but can continue
indefinitely.
5.4 Nottingham's Forest Recreation Ground is
subject to the legal requirement set out in paragraph 4.2(a) above.
In 1972, the City Council allowed part to be used as a temporary
car park for Christmas and New Year sales shoppers. But this was
gradually extended until it became and remains a year-round "park
and ride" centre for commuters and shoppers with approaching
1,000 cars parked at peak periods. No planning permission from
itself has ever been sought but one cannot imagine a private landowner
being allowed to act in this manner without enforcement.
5.5 At Battersea Park (held for the purposes
of the 1906 Act) after some years of obvious planning breaches,
it has been possible to persuade the London Borough of Wandsworth
that it must seek planning permission from itself—properly
advertised—for the erection of large marquees for series
of events lasting up to about 8 weeks each but following each
other closely. The events usually had some connection with recreation
but were often of a commercial nature, causing nuisance to neighbouring
residents and destroying the character of the historic landscape.
To its credit, when, at last, a proper planning application was
made by the department responsible for the park, the Planning
Committee insisted on consultations and important restrictions
for the future, and annual planning applications are to be made
to cover intended periodical events.
5.6 Regrettably, a planning committee cannot
take enforcement action against its fellow defaulting committees,
and it is impossibly expensive for outsiders to seek judicial
review for these lapses which are often far from accidental. Our
Society would need a fund of millions if we were to try to end
all the unlawful actions or inactions—under planning and
other legislation—which come to our attention and there
are limits on the effectiveness of the Local Government Ombudsman.
6. APPROPRIATION
AND DISPOSAL
OF OPEN
SPACE LAND
6.1 If a local authority owning a park intends
to defend it against all comers, it cannot be forced to dispose
of it except by a special Act of Parliament or a compulsory purchase
order (where the prospective purchaser has the powers to make
one) or an order under the Transport and Works Act 1992. But in
the last two instances, the Acquisition of Land Act 1981, section
19, will apply. Except in very minor cases, this requires the
prospective purchaser to satisfy the Secretary of State that there
will be given in exchange, land not less in area and equally advantageous
to the public. Otherwise, the order will be subject to special
parliamentary procedure, for approval by both Houses.
6.2 But in their present financial straits,
a council can be tempted to decide that it would be more in the
public interest for it to use or develop open space land for another
purpose or sell or lease to someone else for that purpose. Or
a private developer or football club owner (the two may be combined)
might make an attractive offer, possibly including the promise
of better recreation or sports facilities for the community.
6.3 Major threats of this nature will often
be killed by local outrage—such as occurred when Newcastle
Football Club wished to put a new stadium on the Town Moor. In
that case, if the City Council had wished to proceed, it would
have had to seek Parliamentary approval of a Bill and, no doubt,
our Society's expressed intention to oppose this was a reason
for it not being in that Council's Bill now before Parliament
for another purpose.
6.4 Lesser threats receive little publicity.
Few people read public notices in the local press about planning
applications or other proposals, or understand their implications
even if seen. A local amenity body does not exist everywhere and,
even where it does, it will not always be actively concerned about
neighbourhoods not normally visited by its middle-class members.
Many areas have no active local leadership other than the councillors
who decide the policies; or the leadership may be in the hands
of the retired who are sometimes more concerned to protect or
enhance their own facilities than those of young families or adolescents.
We are sure that many locally important problems never reach the
Society to enable us to consider giving assistance but, in any
case, it may not be practicable to undertake the thorough research
necessary to be effective.
6.5 Until the passing of the Local Government,
Planning and Land Act 1980, a local authority could not appropriate
or dispose of any open space without the consent of the Secretary
of State and he could require a public inquiry if, following advertisements,
there was any objection. The Society objected strongly to the
1980 Bill which sought to deregulate this procedure but the only
concession obtained was to retain it for the appropriation (to
another service of the authority) of commons, or town or village
green. This procedure is now in section 229 of the Town and Country
Planning Act 1990.
6.6 Where a local authority wishes to appropriate
or dispose of any other type of open space, the amended Local
Government Act 1972, sections 122 or 123 (or, for a parish or
community council, sections 126 or 127) now enables it to advertise
its intention in two consecutive weeks in a local newspaper but
there is no requirement to display notices at the site. While
the authority must consider any objections received, it need take
no further action on them and may confirm the appropriation or
disposal. The report on a disposal will not be revealed to members
of the public, as it is said to be confidential for commercial
reasons.
6.7 Where land held for the purposes of section
164 of the Public Health Act 1875 or section 10 of the Open Spaces
Act 1906 is, then, appropriated or disposed of under the Local
Government Act, it is "freed from any trust arising solely
by virtue of its being held in trust for enjoyment by the public
in accordance with [those sections]". Land held under any
other statutory trust, cannot be broken without an Act of Parliament.
6.8 The status of a common or a town or village
green is not affected if the land is sold. Presumably, for that
reason, there is no restriction on its outright disposal by a
local authority. But, if that encumbrance is to be removed to
allow another use or development, it would be necessary, first,
to seek an appropriation under the Planning Act (see paragraph
6.5 above) to another council service, or promote private legislation.
6.9 However, the Society is, at present, dealing
with a case affecting a portion of Wormwood Scrubs (see paragraph
4.2(b) above) where—it is assumed, in ignorance—the
Borough Solicitor published a Local Government Act advertisement
for disposal. If the advertisement had not been seen (as could
easily have happened) the transaction would have easily slipped
through. the purpose of this attempted disposal happens to be
innocent—no change of use is intended—but it would
be unlawful and a dangerous precedent.
6.10 These Local Government Act procedures are
very unsatisfactory and the Society respectfully urges the Sub-committee
to recommend their amendment as soon as practicable, to ensure
that decisions on appropriation or disposal of open space land
are sent to the Secretary of State for confirmation and they can
also be subject to the protection of section 19 of the Acquisition
of Land Act 1981 (see paragraph 6.1 above).
7. CONCLUSION
7.1 The management powers and duties affecting
public parks (in their widest sense) and recreation facilities
are spread over a large number of Acts, many passed nearly a century
or more ago. It would be helpful for all concerned if this legislation
could be consolidated and modernised in a single code. The Sub-committee
are, therefore, requested to recommend that the Law Commission
be asked to prepare for wide consultation a draft Bill to achieve
that purpose.
7.2 It is important that revised legislation
confirm that these parks are held on trust for public recreation
and enjoyment and that there are effective barriers against breaking
the trust.
April 1999
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