Appropriation of land and decision-making

Jacqueline Backhaus and Henry Fitch look at the lessons to be learned – in relation to decision-making and the appropriation of land – from a recent High Court case involving a London borough.

The recent case of R (on the application of Maries) v LB Merton [2014] EWHC 2689 is a useful reminder of a local authority's wide discretion in determining how land in its ownership is put to use. However, the Judge's detailed examination of the council's decision-making process also serves to remind local authorities that they must ensure that the use of their powers is properly reasoned and documented.

While the full facts of the case are set out here, in summary a local resident challenged Merton's decision to appropriate under section 122 of the Local Government Act 1972 land which it held for the purposes of a public pleasure ground for educational purposes in order to expand a primary school and redevelop sports facilities. The challenge was on the grounds that Merton had failed to consider the test set out in section 122 or had misdirected itself in applying that test. Although the Judge expressed sympathy with both arguments, the claim was dismissed.

As local authorities become more active in redeveloping their land, the use of the section 122 power is becoming increasingly prevalent. This case highlights the importance of understanding the legal test and also the importance of maintaining audit trails in public decision making.

The key legal test is whether the land is no longer required for its existing purpose. The leading case on this is Dowty Ltd v Wolverhampton Corporation, which established that it is for the local authority, rather than the Courts, to determine this question. In Maries, one ground of the claim was that, as Merton was appropriating the land in part in order to construct replacement sporting facilities, it could not be said that the land was no longer required for its current purpose. However, the Judge found that, just because the land was clearly in use for its existing purpose, this did not preclude the local authority finding that it was not required for that purpose.

Further, while the exercise is not a balancing act to determine whether there is a greater requirement for the proposed use than the existing use, in determining whether the land is required for its existing use the local authority will need to carry out a balancing act to determine if the public need for the existing use of the land can be adequately met by other facilities or, as in this instance, by the replacement facilities to be provided.

The case emphasises the vital importance of properly addressing the relevant statutory test and ensuring that there is an accurate audit trail of this. This principle applies to the exercise of every local authority power – possibly the most common ground of legal challenge is that the local authority did not ask itself the correct question or failed to take into account material information. The Judge forensically examined the Merton officer's Committee report and found that, although certain passages could, if read independently, indicate that members were incorrectly directed in their deliberations, when read as a whole the report correctly identified and described the statutory test to be applied and highlighted all relevant facts. It is essential in presenting reports to Committee that the relevant statutory test is clearly set out together with any principles on its application derived from case law. Reasonable endeavours to ascertain all facts relevant to the determination must be obtained and set out, and a clear record of member's deliberations made.

If councils follow due process and ensure that they have properly considered the matter at hand, then the risk of a legal challenge is reduced significantly.

Jacqueline Backhaus is Head of Planning and Henry Fitch is a planning solicitor at Trowers & Hamlins. Jacqueline can be contacted on 020 7423 8523 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Henry can be reached on 020 7423 8672 or This email address is being protected from spambots. You need JavaScript enabled to view it..