This post looks at the importance of local authorities engaging in a conscious deliberative process when appropriating land for a particular purpose under s122 Local Government Act 1972 (the “1972 Act”). It will also be of relevance to those seeking to override easements and other rights through engagement of s237 Town and Country Planning Act 1990 (the “1990 Act”).
S122 of the 1972 Act permits councils to appropriate any land which they hold for any purpose for which they may acquire land by agreement. It is often encountered in the context of the appropriation of land held by a council to a specific planning purpose, thereby engaging the power in s237 of the 1990 Act to override easements and other rights that might otherwise impede the ability to develop the relevant land.
The process can be extremely beneficial in unlocking development value in local authority sites that are subject to third party rights, where the suppression of those rights through engagement of s237 removes the availability to the third party of recourse to an injunction. However, there is a considerable degree of inconsistency across local authorities in the way in which this process is deliberated, recorded and the relevant powers engaged.
The case of R (on the application of Goodman) v Secretary of State for Environment, Food and Rural Affairs  EWHC 2576 (Admin) has reinforced this, and underlines the importance to the process of appropriation of a local authority properly deliberating whether the relevant land is no longer required for the purpose for which it is held.
Key differences between Goodman and Barkas
The Goodman case resulted from an Inspector’s decision in relation to an application to register an area of local authority land as a town or village green. The relevant land had initially been formally appropriated to be held for development purposes and then disposed of for industrial use. In the face of the village green application, the local authority sought to defeat that application by producing evidence of how the application land was subsequently used and managed after 1989. They contended that it could be inferred that there had been a re-appropriation of the land to open space purposes, with the evidence showing that money was spent on it in connection with its use as open space, and trees planted. Use must therefore have been use “by right”. The decision of the Supreme Court in Barkas was cited as support for this proposition.
However, the focus of Barkas was on whether a specific statutory power pursuant to which the land was held by the local authority conferred a statutory right to be on the land using it for recreation. There the land was acquired, and continued to be held by the local authority, for housing purposes. The power to provide housing accommodation of itself included a power to provide and maintain recreational grounds – so an appropriation simply was not necessary to use it for such purposes. The statutory power of itself comprehended recreational use as a purpose, no appropriation was necessary, and therefore recreational use by the public will be “by right”, rather than “as of right”.
In Goodman, the land was not held under a statutory power that comprehended recreational use. Mr Justice Dove considered and roundly rejected the proposition that an appropriation could be inferred to have taken place from the way in which the local authority managed or treated the land it held for industrial use. An appropriation of land for a different purpose pursuant to s122 could not simply be inferred from the authority’s manner of dealing with or managing the land. It was incorrect to rely on the decision of the Supreme Court in Barkas  UKSC 31 as support for that proposition.
Conclusions – the importance of a clear, well documented, decision making process
Whilst it was acknowledged by Mr Justice Dove that there is no statutory requirement “formally to record within council records or resolutions an appropriation”, it does seem particularly risky not to do so – especially given that it is a requirement of s122 to be satisfied that the land is no longer required for the purpose for which it is held. It would seem prudent in all cases to document for evidential purposes a resolution and to support that with robust reasoning as to why the land is no longer required for the purpose for which it is held, and then to show why it is required for a new purpose.
That process is all the more important where the ultimate intention of the local authority is then to engage s237 – a statutory provision embedded in part IX of the 1990 Act. Any resolution to acquire or appropriate land for planning purposes should be properly documented and almost certainly include a review of efforts made to release third party rights (specifically where those rights are potentially injunctable (such as rights to light)), the provisions of the development plan, any other material considerations, and an examination of whether the underlying development proposal would, on balance, justify an interference with the rights of third parties.
There will no doubt be an array of very different approaches to appropriation across different local authorities. Goodman serves as a reminder of the importance to appropriation of engaging in a clear, and preferably well documented, decision making process. For both local authorities and developers, the consequences of failure to follow a robust process could render an attempted appropriation susceptible to challenge, or of no effect at all.