Property Transactions Comprising Open Space

By Lyndsey Parsons

Solicitor

Commercial Property

13 November 2025

Blog News

Where you intend to enter into a land transaction with a local authority (including principal councils, parish and community councils, and parish trustees), and the land comprises, in whole or in part, land classified as open space, it is important to be aware of the statutory requirements imposed on the authority under section 123 of the Local Government Act 1972 (LGA 1972) when disposing of open space

What is Open Space?

Open space is defined by s336(1) of the Town and Country Planning Act 1990 as “any land laid out as a public garden or used for the purposes of public recreation or land which is a disused burial ground”.  This could include any buildings situated on the land such as public toilets. 

School playing fields are also included as open space, however, there are additional statutory requirements which would need to be followed when disposing of school playing fields. This is not covered in this article.

A Disposal

A disposal will include the grant of a lease and an assignment of a lease, the sale of land (options to purchase freehold or leasehold land also constitutes a disposal) and the grant of an easement.

S123 LGA 1972 Procedure for a Disposal

Prior to making a disposal of open space, an LA must advertise its intention to do so in a local newspaper for a period of 2 weeks.  The LA must fully consider any objections to the proposed disposal raised by members of the public.

The LA may seek payment of the cost of the advertisement from the other party to the transaction and this would therefore need to be factored into initial outlay costs.

Best Consideration

The LA is required to obtain best consideration for the disposal.  If it does not and, unless:

•  the LA considers the disposal will assist with the promotion or improvement of the economic, social or environmental well-being of its area and the undervalue does not exceed £2,000,000.00; or
• the disposal is a short-term tenancy (leases or assignment of leases of a term of 7 years or less).

An application must be made by the LA to the Secretary of State or in Wales the Welsh Minister for consent to the disposal (in addition to the requirement to advertise).

Failure to Comply

Failure to comply with s123 of the LGA 1972 does not invalidate the disposal once completed, however, the land will remain subject to any rights of use and enjoyment by the public. This could have a substantial impact on the use of the land and on any potential future development, for example obtaining planning permission. 

It is important to ensure that the requirements of s123 of the LGA 1972 have been complied with so that the land becomes free of rights of use and enjoyment by the public on completion of the disposal.

If you have any questions regarding the contents of this article, or would like to speak to a member of our team, you can do so here.

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.