Associate (Barrister)
Legal pressure jettisons green space development
Fight for Ashton Park v Preston City Council
Preston City Council back down after pre-action correspondence sets out claim that on the Council’s own evidence high costs of delivering a “park revamp” require a third-party leisure provider leasing the sports facilities effectively resulting in the disposal of public open space.
Ashton Park is a 31-hectare public open space, important for recreation and comprising existing sports pitches that are free to use and available to the community. It came into the Council’s ownership in 1937 and remains public open space.
Our clients initially challenged the decision to approve the development of a “sports hub” that was taken in a closed session in December 2023. We set out a potential challenge to the Council’s decision including that it would commit a breach of trust where the land is held as public open space, and the decision to develop the land involved the Council leasing the land to a third party leisure provider without following legal requirements under the Local Government Act 1972 that protect against the disposal of public land or appropriation of that land for other purposes. That includes public land being disposed of by a lease at undervalue. The statutory protections require the Council to give notice and go through public participation.
It was also clearly set out why our clients considered the decision was a pre-determination of a decision to dispose of the land, which, to be lawful, required notice and consideration of public comments and separately that the decision-making process lacked transparency, with restricted access to key information and closed meetings, which should have been open to the public.
After the exchange of correspondence, the Council agreed to revoke its decision and in the interest of avoiding potential litigation agreed to retake the decision giving the public access to decision-making and related documentation and hold a consultation. This led to the “park revamp” being scrapped.
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Commentary
We identified that the decision to develop the land, on the Council’s own evidence, would then require the disposal or development of public open space at a later date through a leisure services contract that typically run for 25 years with an option to renew. We explained to the Council why its decision was taken pre-emptively and outside of statutory protections against the disposal of public owned land. Preston Council recognised the potential mischief in the approach that had been taken.
Statutory protections under the Local Government Act 1972 are there to protect against disposal of public open space and appropriate to other uses. Where land is held as a statutory trust that also imposes fiduciary duties on the Council. Here developing the site would have led to permanent change to the land. It would be made exclusive when it was (and is) open to all.
As well as setting out the basis to challenge the decision, we raised matters that concerned the political body of the Council including that the “park revamp” ignored further (uncosted) financial commitments from the public purse, ultimately making it difficult, if not impossible, to halt the project later without a significant loss or a concern that the Council would refuse to abandon the project due to the sunk cost. This was not a scheme that was supported by residents.