Frees public open space trusts - HA 1988 s.109
HA 1988 s.109 frees land held for public open space from public trust when acquired under Part IV, and exempts from Green Belt restrictions.
To the extent that any land held— for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds), or in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds), is included in an acquisition under this Part, it shall be deemed to be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with that section. Nothing in section 5 of the Green Belt (London and Home Counties) Act 1938 (restrictions on alienation of land by local authorities) applies in relation to a disposal of land included in an acquisition under this Part.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This provision applies when land is acquired under Part IV of the Housing Act 1988. If that land was previously held as public open space under section 164 of the Public Health Act 1875 (pleasure grounds) or in accordance with section 10 of the Open Spaces Act 1906 (duty to maintain open spaces and burial grounds), the acquisition automatically removes any trust that existed only because the land was held for public enjoyment.
Additionally, the restriction on local authorities alienating land under section 5 of the Green Belt (London and Home Counties) Act 1938 does not apply to disposals of such land under Part IV.
When it applies
- A local authority acquires a public pleasure ground under Part IV to build social housing; the trust requiring it to remain a park is removed.
- A burial ground maintained under the Open Spaces Act 1906 s.10 is acquired for redevelopment; the public trust is freed.
- A housing association includes a public garden in its acquisition; the garden ceases to be held on public trust.
- A local authority sells part of a green belt open space that was held under the Public Health Act 1875 s.164; the Green Belt Act s.5 restriction does not apply.
What this section does not say
- Does not apply to land held under other open space laws, such as common land or village greens.
- Does not remove all trusts – only those arising solely because the land was held for public enjoyment.
- Does not affect other restrictions on disposal besides the Green Belt Act 1938 s.5.
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This page reproduces the text of HA 1988 s. 109 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.