Local Government Act 1972, section 122

Appropriation of land by principal councils

Part VII Miscellaneous Powers of Local Authorities

(1)Subject to the following provisions of this section, a principal council may appropriate for any purpose for which the council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation; but the appropriation of land by a council by virtue of this subsection shall be subject to the rights of other persons in, over or in respect of the land concerned.

(2)A principal council may not appropriate under subsection (1) above any land which they may be authorised to appropriate under [F674section 229 of the Town and Country Planning Act 1990F674] (land forming part of a common, etc.) unless—

(a)F675the total of the land appropriated in any particular common, . . . or fuel or field garden allotment (giving those expressions the same meanings as in [F676the said section 229F676] ) does not in the aggregate exceed 250 square yards, and

(b)before appropriating the land they cause notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulatiing in the area in which the land is situated, and consider any objections to the proposed appropriation which may be made to them,

F677 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F678 (2A)A principal council may not appropriate under subsection (1) above any land consisting or forming part of an open space unless before appropriating the land they cause notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulating in the area in which the land is situated, and consider any objections to the proposed appropriation which may be made to them.

(2B)Where land appropriated by virtue of subsection (2A) above is held—

(a)for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds); or

(b)in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds),

the land shall by virtue of the appropriation be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with the said section 164 or, as the case may be, the said section 10.F678]

F679 (3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)M16,M17Where land has been acquired under this Act or any other enactment or any statutory order incorporating the Lands Clauses Acts and is subsequently appropriated under this section, any work executed on the land after the appropriation has been effected shall be treated for the purposes of section 68 of the Lands Clauses Consolidation Act 1845 and section 10 of the Compulsory Purchase Act 1965 as having been authorised by the enactment or statutory order under which the land was acquired.

F680 (5)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definitions used in section 122 3

principal council

“principal council” means a council elected for a principal area;

Defined in s.270(1) · see it in the full Act
land

“land” includes any interest in land and any easement or right in, to or over land;

Defined in s.270(1) · see it in the full Act
open space

“open space” has the meaning assigned to it by section 336(1) of the Town and Country Planning Act 1990 ;

Defined in s.270(1) · see it in the full Act

Cases considering section 122 23

Regina v. City of Sunderland (Respondents) ex parte Beresford (FC) (Appellant)

[2003] UKHL 60 · 13 November 2003Limits

The provision empowers a principal council to appropriate land, subject to special procedures for open space. Lord Scott considered, without deciding, that lawful appropriation to another purpose would override existing public use rights. (See Lord Scott of Foscote’s statutory-provisions discussion.) The provision regulates appropriation of open-space land to another use and requires procedures including publicity and consideration of objections. Its effect on green status was not decided. (See Lord Scott of Foscote’s statutory-provisions discussion.)

Day, R (On the Application Of) v Shropshire Council

[2020] EWCA Civ 1751 · 23 December 2020Defines

The court used section 122(2B) to confirm that the statutory scheme refers expressly to land held in trust for public enjoyment under section 164 of the Public Health Act 1875. (see para [18]) The court used section 122(6) to explain the statutory meaning of public trust land and to confirm that the statutory scheme recognised land held as public walks or pleasure grounds and land held under section 10 of the Open Spaces Act 1906. (see para [18])

Adamson, R. (On the Application Of) v Kirklees Metropolitan Borough Council

[2020] EWCA Civ 154 · 18 February 2020Interprets

The current general appropriation power was used to explain that appropriation requires the authority to decide that land is no longer required for its existing purpose, subject to public-law challenge. (see paras [4]; [32]; [43]-[45]) Section 122(1) was treated as containing no prescribed formula but requiring a conscious deliberative decision that the land was no longer required for its existing purpose. The court used that principle in assessing historical evidence. (see paras [4]; [43]-[45]; [51])

3 more judgments, and what each says about section 122, are in the case-law panel in the full Act.

Amendments and notes

13 notes from legislation.gov.uk

Amendments

  1. F674Words substituted by Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 4, Sch. 2 para. 28(1)
  2. F675Words repealed by Local Government, Planning and Land Act 1980 (c. 65, SIF 81:1, 2), s. 194, Sch. 34 Pt. XII
  3. F676Words substituted by Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 4, Sch. 2 para. 28(1)
  4. F677S. 122(2)(b) words following repealed by Local Government, Planning and Land Act 1980 (c. 65, SIF 81:1, 2), s. 194, Sch. 34 Pt. XIII
  5. F678S. 122(2A)(2B) inserted by Local Government, Planning and Land Act 1980 (c. 65, SIF 123:1, 2), s. 118, Sch. 23 Pt. V para. 12
  6. F679S. 122(3) repealed by Local Government, Planning and Land Act 1980 (c. 65, SIF 81:1, 2), s. 194, Sch. 34 Pt. XIII
  7. F680S. 122(5)(6) repealed by Local Government, Planning and Land Act 1980 (c. 65, SIF 81:1, 2), s. 194, Sch. 34 Pt. XIII

Modifications

  1. C610Ss. 120-123 applied (with modifications) (E.) (24.3.2011) by The Hull and Goole Port Health Authority Order 2011 (S.I. 2011/939), arts. 1(1), 7, Sch. 1
  2. C612Ss. 120-123 applied (with modifications) (E.) (31.3.2017) by The Weymouth Port Health Authority Order 2017 (S.I. 2017/558), arts. 1(1), 8, Sch. 1
  3. C626S. 122 extended (with modifications) (19.9.1995) by 1995 c. 25, ss. 65(7), 125(2), Sch. 8 para. 1(1)(a)(4) (with ss.7(6), 115, 117, Sch. 8 para. 7)
  4. C627S. 122(4) applied by Town and Country Planning Act 1990 (c. 8, SIF 123:1), s. 232(5)

Marginal citations

  1. M161845 c. 18.
  2. M171965 c. 56.