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Eversheds' Local Government briefing note 42/2011 – Appropriation of Land by Local Authorities

    • Local government - Briefing notes

    28-06-2011

    Section 122 of the Local Government Act 1972 and Section 232 of the Town and Country Planning Act 1990

    This briefing note examines the mechanisms by which a local authority may appropriate land for planning purposes and then dispose of the land for development free from private rights over the land, actual or alleged village green rights over the land or any status as open space land.

    Appropriation for Planning Purposes:

    s.122 of the Local Government Act 1972 (LGA) and s.232 of the Town and Country Planning Act 1990 (TCPA) offer two mechanisms under which local authorities may appropriate land for planning purposes. The procedures are largely the same but for one crucial difference, whether or not the land is currently appropriated by the Council for planning purposes.

    Appropriation in this context simply means transferring the allocation of the land from one purpose to another.

    Local authorities usually allocate land for specific purposes under different statutory powers. They may have acquired the land pursuant to a statute which then regulates how the land must be allocated or managed (eg under the Public Health Act 1875) or they may have acquired land for general purposes (eg under s.120 LGA 1972).

    If the local authority decides that it needs to transfer land from one purpose or function to another, perhaps for redevelopment then it may appropriate the land under s.122 LGA 1972, unless the land is currently allocated for planning purposes, in which case s.232(6) TCPA states that s.232 TCPA must be used.

    Planning purposes is not expressly defined but s.246 TCPA states any reference to appropriation of land for planning purposes is reference to the appropriation of it for the purposes for which land could be acquired under s.226 & s.227 TCPA. Therefore, planning purposes means an acquisition or appropriation which will facilitate the carrying out of development, re-development or improvement which is likely to contribute to the economic, social or environmental well being of the area, or which is required in the interests of the proper planning of the area in which the land is situated.

    In short, holding land for planning purposes means the council has the land allocated ‘in its books’ for a purpose relating to planning and development.
    Appropriation Under Section 122 Local Government Act

    Section 122 LGA 1972 provides that: 

    “The council may appropriate for any purpose for which the council is authorised by statute to acquire land by agreement any land which belongs to it and is no longer required for the purpose for which its is held immediately before the appropriation.”

    The key procedural points are as follows:

    a) The land must already belong to the council

    b) The land must be no longer required for the purpose for which it is currently appropriated; and

    c) The purpose for which the council is appropriating must be authorised by statute.

    It is important to note that the authority is the sole judge of whether or not the land is still required for the purpose for which it is held immediately before the appropriation and its decision cannot be challenged in the absence of bad faith (Dowty Boulton Paul v Wolverhampton Corpn (No 2), 1973, CA).

    It is also noteworthy, that s.122 LGA 1972 provides that the Council may not appropriate land constituting or forming part of an ‘open space’ or land forming part of a common (unless it is a common or fuel or field garden allotment of less than 250 square yards) unless they:

    • advertise their intention to do so for two consecutive weeks in a newspaper circulating in the local area; and

    • consider any objections to the proposed appropriation which may be made to them.

     ‘Open space’ is defined by s.336(1) TCPA 1990 (adopted by the LGA) as “any land laid out as a public garden, or used for the purposed of public recreation, or land which is a disused burial ground” this impliedly includes de facto open space land not formally dedicated under the Open Spaces Act 1906.

    Appropriation Under Section 232 TCPA

    Section 232 TCPA 1990 provides that:

    “Where any land had been acquired or appropriated by a local authority for planning purposes and is for the time being held by them for the purposes for which it was so acquired or appropriated, the authority may appropriate land for any purpose for which the council is authorised by statute to acquire land by agreement.”

    The key procedural points are as follows:

    a) The land must already belong to the council and have been acquired or appropriated for planning purposes

    b) The land must be held by the council for purposes which it was appropriated; and

    c) The purpose for which the council is appropriating must be authorised by statute.

    It is important to note that s.232(4) of the TCPA provides that the Council must follow the same advertising requirements for ‘open space’ as above.
     
    Overriding Private Rights & TVG Applications

    Section 237 TCPA 1990 provides that the erection, construction or carrying out of any building work (by the Council or a person deriving title from the Council) on land which has been appropriated by a local authority for planning purposes is authorised if it is done in accordance with planning permission, not withstanding that it interferes with certain private rights such as restrictive covenants and easements. The private rights are converted into a claim for compensation.
    Section 241 TCPA 1990 provides that land appropriated by a local authority for planning purposes may be used in any manner in accordance with planning permission notwithstanding its status as open space or any town and village green rights.

    It should be noted that s.241 may not assist local authorities where land has already been registered as town or village green as the local authority may only appropriate such land where the Secretary of State confirms the appropriation in accordance with s.232(2) TCPA 1990 and 122(2) LGA 1972. 

    General Procedural Requirements

    The decision to appropriate land is, like many administrative actions by public authorities, subject to challenge by judicial review. If private rights or alleged town and village green rights are to be overridden the Council must be especially careful. The Council must be able to demonstrate the purpose for the appropriation and that it has taken all the relevant considerations into account and not taken any irrelevant considerations into account.

    To enable the Council to demonstrate that the decision has been made properly and in accordance with Wednesbury reasonableness, the proposal to appropriate must be the subject of a comprehensive report and decision record or minute. The minutes should show that the land is not currently appropriated for planning purposes and that the Council intends to formally appropriate the land under s.122 LGA 1972 or that the land is currently held for planning purposes and that the Council intends to appropriate the land for alternative planning purposes. If s.122 LGA 1972 is being utilised the minutes must record the resolution that the land is no longer required for the purpose for which it is currently appropriated.

    Advertisements in accordance with s.122(2A) or s.232(4) in respect of open space must give clear information and refer to the intended appropriation, the Council’s minutes must then record that any objections received have been duly considered.
     
    Appropriations of land are an executive function under the Local Government Act 2000 and so any decision to appropriate land would need to taken by the Cabinet.

    Disposal of the Land

    The prospect of a future disposal of land is addressed in both s.123 of the LGA 1972 and s.233 of the TCPA. These provisions  provide arrangements for the disposal of land not appropriated for planning purposes and land appropriated for planning purposes respectively. There are also analogous provisions for the advertising of any disposal of ‘open space’.

    There is some suggestion that the advertisements required under s.122(2A) of the LGA and s.233(4) of the TCPA could run at the same time, where the intention is to appropriate a piece of land for planning purposes and then to sell it to a developer. However, such an advertisement would have to be very clearly worded, making it obvious that the advertisement deals with both the requirement under s.122(2A) of the LGA and s.233(4) of the TCPA if the Council is to avoid a potential judicial review challenge.

    It is important to remember that the local authority is under a duty to dispose of land for the “best consideration that can be reasonably obtained” unless the land is disposed of for a short tenancy of less than seven years or in some cases Secretary of State consent is required.

    For more information or advice please contact:
    Stuart Andrews
    Partner
    Tel: 0845 497 1272
    stuartandrews@eversheds.com

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