Open Space
Local councils have a vital role to play in creating sustainable communities—and an important means of achieving this is through the creation and care of open space.
It is vital to secure green infrastructure in and around communities and neighbourhoods. This can include a network of paths and spaces, places for recreation, habitats for wildlife and natural corridors and flood mitigation.
What is open space
There is no universal definition of open/green space, in respect of size, quality or description.
However, open space is defined in the Town and Country Planning Act 1990 as land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground.
Open space may be managed under public or local acts of parliament, or under schemes of management (made by local authorities for common land and town/village greens). Open spaces are often accessed via public paths.
Rights and responsibilities
There may be rights of access recognised in law and recorded, for example where land is registered as common land or town/village greens, and some public open spaces.
Customary rights to use open space for recreation may have been established by long use. Land may have been leased to local councils for recreation and the public then has permission to use it.
Byelaws may make it a criminal offence to carry out prohibited activities on open space.
Open Spaces Society
The open spaces we champion come in all shapes and sizes, in town and country. The open spaces we are asked to defend often comprise land which the public uses by right, for instance town and village greens and registered common land, or by custom, such as an open space with no legal protection.
How is open space protected?
Just because people use land does not mean it is protected. Councils need to be proactive in taking action to protect open space.
Local councils (town, parish, and community councils) are well placed to protect and care for the open spaces and paths in their areas. Some powers are specifically conferred on local councils, others are conferred on the public in general but are best exercised by local councils, since they have the authority and more resources than most individuals and voluntary organisations, and they command respect.
The society’s information sheet, What local councils can do for public access, [www.oss.org.uk/what-local-councils-can-do-for-public-access-to-town-and-countryside] sets out what local councils can do to improve public access to the commons, town and village greens, other open spaces, and public rights of way in their areas, and protect them for all to enjoy.
Land may be designated as open space in a local development plan, which contains policies about open space strategy and provision.
In England the National Planning policy framework, (NPPF) revised July 2021, provides policy about open space at paragraphs 92 -103 and there is a Planning Policy guidance website.
Natural England has produced a Green Infrastructure Framework which is a means of analysing where greenspace in urban environments is needed most.
In Wales open space policy is set out in Planning Policy Wales edition 11 and Technical Advice Note 16; Sport, Recreation and Open Spaces.
Natural Resources Wales has a greenspace toolkit which helps local authorities plan and improve green space for local people, and some councils have supplementary planning guidance. https://naturalresources.wales/about-us/what-we-do/our-roles-and-responsibilities/green-spaces/local-green-spaces/?lang=en
Carmarthenshire County Council has supplementary planning guidance (Leisure and Open Space), requirements for new developments in the local development plan.
Land may be held under local or public acts of parliament which may provide protection. It may be protected by covenants governing use of the land as open space, or through the use of byelaws.
Subject to the local policies in a local development plan, if land is held as open space, it cannot be disposed of unless the process under section 123 of the Local Government Act 1972 (as amended) is used. The disposal must be advertised and objections considered before any disposal can take place.
Managing open space
Under Open Spaces Act (OSA)1906, s9: a local authority may:
a) ‘Acquire by agreement…any open space or burial ground, whether situated within the district of the local authority or not; and…
b) undertake the entire or partial care, management, and control of any such open space…, whether any interest in the soil is transferred to the local authority or not’.
Under Public Health Act (PHA) 1875, s164:
‘…may purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds, and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever.’
Under s139 Local Government Act 1972:
If a council receives a gift under (1(a)), the land must then be held for the purposes of those functions, and in relation to open space, that would be under the 1906 or 1875 Act.
Protection of open space
Voluntary registration as a town or village green
Reasons for registration might include the following:
The land owned by a council is already used by local people for recreation (perhaps with permission) and the council wishes to formalise the position and protect the land for people’s enjoyment in the future, or to allocate for recreation land which is not currently used for that purpose. Alternatively, a council is promoting or funding the provision or improvement of open space, or there may be a planning condition for a development requiring provision of a recreational area.
Powers are available, under section 15(8) Commons Act 2006, which allow an owner of land voluntarily to dedicate the land as a town or village green by applying to have it included in the register of town or village greens. There is a fast-track process requiring proof of ownership and the consent of anyone who holds a lease or mortgage over the land.
Village greens are protected from encroachment and development by the Inclosure Act 1857 s12 and the Commons Act 1876 s29. The only development permitted is where it is for the better enjoyment of the green for sports and pastimes.
Elmbridge Borough Council in Surrey has agreed voluntarily to register a new village green at Stokes Field, Long Ditton, following assistance from the society’s local correspondent.
Fifty seven percent of Elmbridge’s land area comprises registered commons and other accessible open spaces and the council does excellent work managing and protecting these. It deserves credit for being willing to listen to the society’s arguments.
Local green space designation (England only)
The NPPF (updated in 2021), sets out the government’s planning policies for England.
Paragraphs 99 to 101 introduced a new Local Green Space designation (LGS) to protect local green areas of particular importance to local communities.
This enabled communities, in particular circumstances, to identify and protect areas that are of value to them through local and neighbourhood plans.
Once designated, the LGS is subject to the same strong development restrictions as green-belt land, and new development here is ruled out other than in special circumstances.
The LGS is designated by the planning authority (borough, district, metropolitan or other unitary authority) and needs to satisfy the following criteria: to be in reasonably close proximity to the community it serves; demonstrably special to a local community; local in character, and not an extensive tract of land.
There is no prescribed process. Some councils allow submission of areas through the local plan process when they publish allocation of sites plans or policies.
Freshwater Parish Council on the Isle of Wight designated 15 areas of open space as LGS in its neighbourhood plan. The council created a checklist against which to test the potential LGSs and said they must not have an extant planning permission, nor be allocated for development in the local plan, they must not be extensive but must be local in character, close to the communities they serve and demonstrably special to that community.
Once designated in the plan, the land is safe from development except in special circumstances.
The Freshwater Neighbourhood Plan recognises the importance of the natural environment and has policies which seek to protect, conserve and, where possible, enhance these assets. The council has set an excellent example to others.
Asset of community value (ACV) (England only)
An asset of community value can be buildings or land in use for well-being or social interests of the local community. Examples include parks, open spaces, libraries, heritage sites, village shops, pubs.
Listing can affect subsequent planning decisions and afford greater protection for open spaces where the ACV is regarded as a material issue. In addition, it allows the community to bid for the asset, and a temporary moratorium is placed on a sale of the land.
An application to list land can be made by the parish council or voluntary/community body. There is no prescribed form but most planning authorities have information on their websites.
An open space at Whitehall Road, Blackburn, following assistance from the society, was awarded ACV status.
Create a new common
A new common can be created by the owner granting a right of common, such as for grazing, estovers (to take wood), or turbary (to cut turf or peat).
The land then becomes eligible for registration as common land. This attracts the same protection as all commons, for instance restrictive works must gain consent using the process under section 38 Commons Act 2006.
The late owner of three acres at Rushall in Norfolk wanted to protect her land. She gave a right of common to a member of the Open Spaces Society so the land became common. He registered the right and the land on Norfolk County Council’s commons register. Now the public has the right to walk on St Clements Common and it is protected from encroachment and valued by the local community.
Car parking
The Road Traffic Regulation Act 1984 section 57 allows a council to provide parking places, including appropriating open space, but the area must not exceed the lesser of one eighth or 800 square feet, and may require the consent of the higher-tier council.
Byelaws
There are byelaw making powers under the PHA section 164 for the regulation of a public walk or pleasure ground, and under section 12 and 15 of the OSA for the regulation of open space. Byelaws can also be made on common land and village greens.
Councils, where such a power is conferred, may make byelaws, where there is no duplication of existing law but these should be used as a means of last resort.
When making byelaws councils should use the model byelaw set and adapt it as required.
The model set includes byelaws on protection of the ground, its wildlife and the public, horses, cycles and vehicles, play areas, games and sports, waterways and model aircraft.
Public Spaces Protection Orders (PSPOs)
The Anti-Social Behaviour, Crime and Policing Act 2014 gives councils the power to make PSPOs. These are to ban any activities in public places which they consider have a detrimental effect on the lives of others. The activities must be shown to be persistent and unreasonable, and the restrictions must be evidenced as justifiable. A PSPO must identify a public place, prohibit specified things, or require specified things to be done to prevent or reduce detrimental effects. They can last for up to three years and can be extended for a further three. There must be consultation which includes the local community representatives and owners of land within the restricted area. Conflicting byelaws can be suspended and any offence is punishable with a level 3 penalty.
About the Open Spaces Society
The Open Spaces Society is Britain’s oldest national conservation body, founded in 1865. It has over 2,000 members consisting of individuals, organisations and local authorities, including local councils. It campaigns to create and protect common land, town and village greens, other open spaces and public paths. As a charity it is dependent on subscriptions and donations for its funding. The membership subscription for local councils is £45 a year.
The Open Spaces Society, 25a Bell Street, Henley-on-Thames RG9 2BA.
www.oss.org.uk
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Written by Nicola Hodgson, Open Spaces Society
As appeared in Clerks & Councils Direct, July 2023
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