Malpass, Regina (on The Application of) v The County Council of Durham: Admn 25 Jul 2012

The question was whether the council held land as open space, either under the Public Health Act 1875 or under the Open Spaces Act 1908. The title deeds under which the council acquired the land in 1936 did not state the purpose for which it had been acquired. The council relied on a subsequent deed dated 1964. That deed recited that ‘the Council have been requested to put on record the purposes for which the lands are to be used and the Council have decided so to do by this Deed’. It then purported to declare that the land was ‘held by the Council under its statutory powers for the benefit or interest of the Public as Open Spaces for the recreation of the Public or for Public Walks Parks and Pleasure Grounds’. Consistently with the deed the land was used for that purpose for many years. In the course of a non-statutory inquiry the inspector decided that the deed amounted to an appropriation.
Held: HHJ Kaye QC did not agree. He accepted a submission that: ‘It was insufficient merely to state that the land was ‘in practice’ held for a purpose which was not inconsistent with the new, informally appropriated, purpose. To be a valid appropriation to the stated use, the local authority must have concluded that the land subject to the appropriation was ‘not required’ for its existing purposes (see Local Government Act 1933, ss 163, 165). No such conclusion is recorded in the 1964 Deed or elsewhere nor does the 1964 Deed declare it was appropriating the land to a different purpose. Moreover, to take effect as an appropriation from one use to another the formal statutory mechanisms of the Local Government Act 1933 needed to be complied with and ministerial approval (at that time) was needed. It was apparent none of the formalities had been observed. All this is unsurprising given the inspector was relying on and treating the 1964 Deed as an informal process.’
[2012] EWHC 1934 (Admin)
England and Wales
Cited by:
CitedAdamson, Regina (on The Application of) v Kirklees Metropolitan Borough Council CA 18-Feb-2020
Appropriation was not in sufficient form
The claimants had challenged an order supporting the decision of the Council to use their allotments for a new primary school, saying that the land had be appropriated as allotment land, and that therefore the consent of the minister was needed.
Updated: 01 April 2021; Ref: scu.463281