20 August 2023

Development of Open Spaces | Commercial Property

Open Space is defined as land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground, as per the Town and Country Planning Act 1990.

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Open Space is defined as land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground, as per the Town and Country Planning Act 1990. An Open Space may be managed by the local or public authority, or under a management scheme.

A local development plan may stipulate that land is to be used solely for an Open Space in a local development plan. This plan will include information about the provision for developing said land, if applicable.

If the land is held to be an Open Space, then it cannot be disposed of unless the process under section 123 of the Local Government Act 1972 (as amended) is used. The disposal of said land must be advertised, and any objections must be considered before any disposal of the land can take place.

Section 122 of the Local Government Act 1972 (as amended) confirms that there is a general power to appropriate land conferred on ‘principal councils’ (such as belonging to that council if the land is no longer required for the purpose for which it is held or for any other purpose for which it is authorised by statute to acquire land).

Power of local authority

A local authority can override third-party rights in land appropriated for planning purposes. The power the local authority holds often overrides any restrictive covenant or right benefitting the neighbouring property. This power extends to successors in title, which means most developers can also rely on section 203 of the Housing and Planning Act 2016 which deals with the same.

A local authority can further stipulate in their Local Plan Strategy Document whether they wish for a development to make provision for the land to include an Open Space. The quality, quantity and accessibility standards for Open Space developments can be set out in the local development plan and should be considered before entering into a purchase of said land. The local authority will make assessments based on the quantity, quality and accessibility standards to consider whether a development of an Open Space should be permitted.

Essex Design Guide

The Essex County Council website includes an Essex Design Guide which is useful in looking at the criteria required to develop public Open Spaces in Essex. It confirms that each and every development is expected to make a positive contribution to the public space system. Green Space Strategies are particularly important. Every urban development should provide or contribute to the public space and biodiversity, and most should incorporate green space, linked to the surrounding system. For example, parks should provide places for sitting and socialising and should be positioned close to the homes of the local community. Materials used in the development of Open Spaces should be suitable for use by all ages and planning should seek to stimulate a range of senses.

It is important to note that any maintenance and adoption of developed Open Spaces needs to be established and agreed upon with all relevant stakeholders.

Failure to have regard for material considerations required for a development may mean that the land cannot be developed, especially for housing.

Small space Open Spaces are often the greatest opportunity to integrate smart infrastructure. Quality, scale, enclosure, materials, treatment of ground surface, detailing and continuity are all important factors that will be considered in relation to developing an Open Space. It is important to always ensure a surveyor has assessed the land, and any investigatory enquiries have been made with the Local Authority to ensure the development is permitted and safe.

Ready to help

Kew Law is able to advise on Open Spaces taking into account the factors that must be considered.

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0800 987 8156

Nicole Gibbs

Senior Associate (Solicitor)