Local Government Act 1972, section 123

Disposal of land by principal councils

Part VII Miscellaneous Powers of Local Authorities

(1)Subject to the following provisions of this section, [F681and to those of the Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010,F681] a principal council may dispose of land held by them in any manner they wish.

(2)Except with the consent of the Secretary of State, a council shall not dispose of land under this section, otherwise than by way of a short tenancy, for a consideration less than the best that can reasonably be obtained.

[F682 (2A)A principal council may not dispose under subsection (1) above of any land consisting or forming part of an open space unless before disposing of 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 disposal which may be made to them.

[F683 (2AA)Subsection (2A) does not apply to a disposal to which the provisions of regulations made under section 1 of the Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010 apply.F683]

(2B)Where by virtue of subsection (2A) above [F684 or in accordance with the provisions of regulations made under section 1 of the Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010.F684] a council dispose of land which is held—

(a)for the purpose 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 disposal 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.F682]

F685 (3)—(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F686 (6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)For the purposes of this section a disposal of land is a disposal by way of a short tenancy if it consists—

(a)of the grant of a term not exceeding seven years, or

(b)of the assignment of a term which at the date of the assignment has not more than seven years to run,

and in this section “public trust land” has the meaning assigned to it by section 122(6) above.

Definitions used in section 123 4

Wales

In this Act “Wales” means the combined area of the preserved counties and “England” does not include any area which is included in any of the preserved counties.

Defined in s.269 · see it in the full Act
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 123 36

R (on the application of Day) v Shropshire Council

[2023] UKSC 8 · 1 March 2023Interprets

Requires notice of a proposed disposal of open space to be advertised for two consecutive weeks and objections to be considered. Compliance is an essential condition for freeing statutory-trust land from public rights (see paras [91]; [102]-[110]). Statutory-trust recreation land is freed from the trust by disposal only where the section 123(2A) procedure has been followed. The provision contains the clear and specific language required to extinguish public rights (see paras [91]; [101]-[103]). As originally enacted, this provision permitted only limited disposals of public-trust land and expressly freed the land from the trust when its conditions were met. Its history supported the narrow construction of section 128(2) (see paras [77]-[79]; [108]-[110]). The original provision treated open space that was not public-trust land differently by requiring ministerial consent rather than imposing the public-trust land-area restriction (see para [108]). Helped define the original statutory treatment of open space not held as public-trust land (see para [108]).

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

[2003] UKHL 60 · 13 November 2003Disapplies

The provision empowers disposal of council land. Lord Scott considered, but did not decide, that a duly exercised power to dispose of open space might override town or village green status. (See Lord Scott of Foscote’s statutory-provisions discussion and conclusion.) The provision prescribes publicity, objections and consideration requirements before disposal of open-space land. The House did not decide whether compliance overrides registered green status. (See Lord Scott of Foscote’s statutory-provisions discussion.) The provision permits disposal of open-space land freed from a statutory trust under the Open Spaces Act 1906. (See Lord Scott of Foscote’s statutory-provisions discussion.)

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

[2020] EWCA Civ 1751 · 23 December 2020Limits

The court treated section 123 as the statutory disposal power whose operation is subject to the advertising, objection and trust-release provisions in subsections (2A) and (2B). (see paras [29], [42]-[43]) Cited only. The court interpreted section 123(2A) as imposing mandatory requirements: before disposing of open space, the council must advertise the proposed disposal in two consecutive weeks and consider objections. Without compliance, the section 123 disposal power is not exercisable. (see paras [31]-[32], [42]-[43]) The court held that section 123(2B) frees land from the statutory public-recreation trust only where the section 123(2A) advertising and objection requirements have been met. It does not itself govern an unauthorised disposal where those requirements were omitted. (see paras [31]-[32], [42]-[43])

16 more judgments, and what each says about section 123, are in the case-law panel in the full Act.

Amendments and notes

31 notes from legislation.gov.uk

Amendments

  1. F681Words in s. 123(1) inserted (15.12.2010) by Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010 (nawm 6), ss. 2(2)(a), 5(2)
  2. F682S. 123(2A)(2B) inserted by Local Government, Planning and Land Act 1980 (c. 65, SIF 123:1, 2), s. 118, Sch. 23 Pt. V para. 14
  3. F683S. 123(2AA) inserted (15.12.2010) by Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010 (nawm 6), ss. 2(2)(b), 5(2)
  4. F684Words in s. 123(2B) inserted (15.12.2010) by Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010 (nawm 6), ss. 2(2)(c), 5(2)
  5. F685S. 123(3)(4)(5) repealed by Local Government, Planning and Land Act 1980 (c. 65, SIF 81:1, 2), s. 194, Sch. 34 Pt. XIII
  6. F686S. 123(6) repealed (with savings in S.I. 1990/431, Sch. 1 para. 1(a)) by Local Government and Housing Act 1989 (c. 42, SIF 81:1), s. 194(2), Sch. 12 Pt. I (and as saved, amended (1.8.1993) by 1993 c. 10, s. 98(1), 99(1), Sch. 6 para. 12(3)). this amendment is subject to savings and/or transitional provisions, see the commentary.

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. C628S. 123 excluded by Education Reform Act 1988 (c. 40, SIF 41:1), ss. 76(11), 137(6), 189(6), 231(7), 235(6)
  4. C629S. 123 modified (7.8.1991) by S.I. 1991/1773, art. 8(2), Sch. 2
  5. C630S. 123: certain functions transferred (7.8.1991) by S.I. 1991/1773, art. 8, Sch. 2
  6. C631S. 123 extended (3.4.1995) by 1994 c. 19, s. 51(6) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2)); S.I. 1995/852, art. 8, Sch. 4
  7. C632S. 123: power to make provisions about matters of the kind dealt with in this section conferred (1.9.1997) by 1997 c. 50, s. 44(1), Sch. 4(a)(vii); S.I. 1997/1930, art. 2(1)(2)(m)
  8. C633S. 123 applied (with modifications) (20.11.2006) by The Devon and Somerset Fire and Rescue Authority (Combination Scheme) Order 2006 (S.I. 2006/2790), art. 2, Sch. para. 15
  9. C634S. 123 excluded (25.5.2007) by The School Organisation (Transitional Provisions) (England) Regulations 2007 (S.I. 2007/1355), regs. 40 46, {Sch. 4 para. 12(5)}
  10. C635S. 123 modified (E.) (6.4.2010) by The Portsmouth Port Health Authority Order 2010 (S.I. 2010/1217), arts. 1(1), 4, Sch.
  11. C636S. 123 modified (E.) (6.4.2010) by The Cowes Port Health Authority Order 2010 (S.I. 2010/1216), arts. 1(1), 4, Sch.
  12. C637S. 123 excluded (E.) (28.1.2014) by The School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2013 (S.I. 2013/3110), reg. 1(1), Sch. 5 para. 10(5)
  13. C638S. 123 applied (with modifications) (1.4.2015) by The Dorset and Wiltshire Fire and Rescue Authority (Combination Scheme) Order 2015 (S.I. 2015/435), art. 1(2), Sch. para. 17
  14. C639S. 123 modified (1.4.2018) by The Sub-national Transport Body (Transport for the North) Regulations 2018 (S.I. 2018/103), regs. 1(2), 19(4)
  15. C640S. 123 applied (with modifications) (1.4.2020) by The Hampshire and Isle of Wight Fire and Rescue Authority (Combination Scheme) Order 2020 (S.I. 2020/186), art. 1(2), Sch. para. 17
  16. C641S. 123(2) excluded by Local Government Act 1988 (c. 9, SIF 81:1, 2), s. 26(5)(b)
  17. C642S. 123(2) applied (5.7.1994) by 1994 c. 19, ss. 39(2), 66(2)(b), Sch. 13 para. 11(4) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2))
  18. C643S. 123(2) restricted (28.7.2000) by 2000 c. 21, ss. 131, 154(5)(c), Sch. 8 para. 9(1)
  19. C644S. 123(2) excluded (29.7.2010) by Academies Act 2010 (c. 32), s. 19(2), Sch. 1 para. 10(2)(a); S.I. 2010/1937, art. 2, Sch. 1
  20. C645S. 123(2)(2A) excluded by 2010 c. 32, Sch. 1 para. 20(2) (as substituted (1.2.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 14 para. 1; S.I. 2012/84, art. 3 (with art. 5))
  21. C646S. 123(2) excluded (21.8.2013) by The Croxley Rail Link Order 2013 (S.I. 2013/1967), arts. 1, 43
  22. C647S. 123(2A) applied (5.7.1994) by 1994 c. 19, ss. 39(2), 66(2)(b), Sch. 13 para. 11(4) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2))
  23. C648S. 123(2A) restricted (28.7.2000) by 2000 c. 21, ss. 131, 154(5)(c), Sch. 8 para. 9(2)
  24. C649S. 123(2A) excluded (26.7.2002) by Education Act 1996 (c. 56), s. 482(6), Sch. 35A para. 10(3) (as inserted (26.7.2002) by Education Act 2002 (c. 32), s. 65, Sch. 7 Pt. 1 para. 1 (with ss. 210(8), 214(4)); S.I. 2002/2002, art. 2
  25. C650S. 123(2A) excluded (29.7.2010) by Academies Act 2010 (c. 32), s. 19(2), Sch. 1 para. 10(2)(a); S.I. 2010/1937, art. 2, Sch. 1