The House of Lords has acted to defend public open spaces against development

This post is by Harriet Child, solicitor at the Public Interest Law Centre.

In a lively debate in the House of Lords recently on the Planning and Infrastructure Bill, members robustly defended the importance of public trusts for recreational use of land, ensuring the public’s rights weren’t retrospectively taken away without consultation by a proposed amendment.

The amendment was introduced by Lord Banner and would have removed the public trust over recreational land in circumstances where the land was sold without public consultation, in breach of the requirements of the Local Government Act 1972.

Land held under s164 of the Public Health Act 1875 or in accordance with s10 of the Open Spaces Act 1906 is held by the local authority “in trust” for the public’s use and enjoyment, and the local authority must consult prior to selling it. Where it does so, the disposal of the land frees it from the trust. The Supreme Court decided in R (Day) v Shropshire [2023] UKSC 8 that where the statutory consultation requirements are not met, the disposal does not free the land from the public trust, which continues to exist despite the land falling into private hands. It was this decision at which the amendment was aimed.

The existence of public trusts has real world consequences. In Lord Banner’s view, they continue “to frustrate the beneficial repurposing or redevelopment of the land in question”. But as Baroness Bennett said: “beneficial repurposing is…often in the eye of the beholder”.

The local community in Wimbledon is involved in a dispute with the All England Lawn Tennis Club (AELTC) over the expansion of the Wimbledon tennis tournament grounds. The proposed development land was part of the Wimbledon Park Open Space, which was sold by the local authority to the AELTC in 1993 without public consultation, with both parties assuring the public at the time that there would be no development, covenanting that the land would not be used except for leisure, recreation and open space.

According to Lord Banner, Wimbledon Park is far from the only example: the uncertainty created by public trusts over former public land is holding up “many developments across the country”.

Why have these public open spaces been sold?
The government has created a ‘builders vs blockers’ narrative, which has characterised any resistance to development as ‘nimbyism’. But the figures and examples given in the debate show that community concerns about development are often well founded.

As it is, communities have few defences against the sale of public open space. All local authorities need to do to sell open space is carry out a two week consultation and “consider” the objections. These weak protections, a product of liberalisation of public land sales in the 1980s, have resulted in “the new enclosure”. According to the House of Lords debate, from the late 1970s to 2019, ten per cent of former public land in Britain has been transferred into private hands, representing two million hectares of land.

It is still happening. The London Borough of Enfield is in the process of disposing of some 53 hectares of public open space to private interests. The development of Whitewebbs Park by a private company, which would enclose a large part of it and remove the public’s statutory right of access, was approved by the local authority and nodded through by the mayor of London and the secretary of state.

Communities have good reasons to be concerned
There are very good reasons why communities want to protect public open spaces from development. They are vital for engendering a sense of community and tackling inequality relating to access to nature and health. Deriding community activists who campaign to protect these spaces as blockers is not the answer.

Members spoke forcefully against the amendment, which would have effectively removed any consequences when local authorities sell public recreational land without consultation. It was positive to see some thoughtful contributions on how the issue of historic land sales without consultation might be addressed, and the idea of alternative provision raised, such as the following from Baroness Hodgson:

“In situations where such a purchase will mean that the public’s rights of enjoyment will not be maintained, surely there should at least be extensive consultation with local communities, with their views taken into account, and where there is strong objection, surely at the very least some alternative provision should be made.”

Sadly, the public’s rights of enjoyment are being lost all too frequently. Stronger protections are needed, but at least this attempt to weaken them did not prevail.