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OPEN SPACES ACT 1906

OPEN SPACES ACT 1906 - LONG TITLE

An Act to consolidate Enactments relating to Open Spaces.
[4th August 1906]
LOCAL AUTHORITIESLocal authorities.

OPEN SPACES ACT 1906 - SECT 1

1. Each of the following bodies shall be a local authority for the
purposes of this Act, namely

[Any district council].

Power of trustees under local Act to transfer open space to local
authority or admit other persons to enjoyment thereof.

OPEN SPACES ACT 1906 - SECT 2

2.(1) Where an open space is, in pursuance of a local or private
Act of Parliament, placed under the care and management of trustees
or other persons (in this section referred to as trustees), with a
view to the preservation and regulation thereof as a garden or open
space, the trustees may, in pursuance of a special resolution, and
with the consent, signified by a special resolution, of the owners
and occupiers of any houses which front upon the open space, or of
which the owners and occupiers are liable to be specially rated for
the maintenance of the open space,

(a)convey, for or without any consideration, to any local authority,
their estate or interest in the open space or, if they have no
such estate or interest, transfer to any local authority the entire
care and management of the open space, to the end that the space
may be preserved for the enjoyment of the public; or

(b)grant, for or without any consideration, to any local authority
any term of years or other limited interest in or any right or
easement over the open space; or

(c)make any agreement with any local authority for the opening to
the public of the open space and the care and management thereof
by the local authority, either at all times or at any specified
time or times; or

(d)notwithstanding anything in the Act or any instrument under which
the trustees are constituted or act, admit persons not owning,
occupying, or residing in any house fronting on the open space to
the enjoyment of the open space, either at all times or at any
specified time or times, and regulate the admission of such persons
thereto on such terms and conditions as the trustees think proper.

(2) Where the freehold of the open space and the freehold of all
or the greater part of the houses round the open space are vested
in the same person the powers conferred by this section shall not
be exercised without the consent of that person.

(3) Any such conveyance, transfer, grant, or agreement shall be
made, if the trustees are a corporation, by an instrument under the
common seal of the trustees, and if the trustees are not a
corporation, by an instrument under the hands and seals of any five
of the trustees, or of all the trustees if for the time being
they are less than five in number.

(4) Any conveyance, transfer, grant, or agreement under this section
shall be deemed a good execution of the trusts, powers, and duties
imposed or conferred upon the trustees by the Act or instrument
under which they are constituted or act, and where the trustees
convey their entire interest in, or transfer the entire care and
management of, the open space they shall, on the execution of the
conveyance or transfer, be relieved and discharged from all trusts,
powers, and duties under the Act or instrument or otherwise with
reference to the open space.

(5) The trustees shall hold any purchase money or rent paid for or
in respect of the open space in trust for the benefit of the
persons or class of persons for whose benefit the open space was
previously preserved and managed by the trustees, or, as the case
may be, for the benefit of the objects to which any rates
previously imposed in respect of the open space had been applied,
and such persons or class of persons shall be discharged either
absolutely, or, if the grant was for a term of years or other
limited interest, during the continuance of that interest, from any
special rate or other obligation previously imposed on them in
respect of the open space.

OPEN SPACES ACT 1906 - SECT 3
Transfer to local authority of spaces held by trustees for purposes
of public recreation.

3.(1) Where any land is held by trustees (not being trustees
elected or appointed under any local or private Act of Parliament)
upon trust for the purposes of public recreation, the trustees may,
in pursuance of a special resolution, transfer the land to any
local authority by a free gift absolutely or for a limited term,
and, if the local authority accept the gift, they shall hold the
land on the trusts and subject to the conditions on and subject to
which the trustees held the same, or on such other trusts and
subject to such other conditions (so that the land be appropriated
to the purposes of public recreation) as may be agreed on between
the trustees and the local authority with the approval of the
Charity Commissioners.

(2) Subject to the obligation of the land so transferred being used
for the purposes of public recreation, the local authority may hold
the land as and for the purposes of an open space under this Act.

OPEN SPACES ACT 1906 - SECT 4
Transfer by charity trustees of open space to local authority.

4.(1) Where an open space is vested in trustees, other than such
as are mentioned in the foregoing provisions of this Act, for any
charitable purpose and as part of their trust estate, and it
appears to the majority of the trustees that the open space is no
longer required for the purposes of their trust, or may with
advantage to the trust be dealt with under this section, the
trustees may, in pursuance of a special resolution.... and.... in
pursuance of an order of the court to be obtained as hereinafter
provided, convey or demise the open space to any local authority on
such terms as they may agree, and the local authority shall
thenceforth be entitled to hold the same as an open space on the
terms and under the conditions specified in the conveyance or
demise, or on such terms or under such conditions as may be so
authorised or approved, or as the court may from time to time
order, as the case may be.

(2) The court for the purposes of this section shall be either the
High Court or the county court of the district in which the whole
or any part of the open space is situate.

(3) An order of the court for the purposes of this section may be
made upon application by the trustees, in manner directed by rules
of court, and the court, before making any order, may direct such
inquiries to be made, such consents to be obtained, and notice to
be given to such persons, as to the court seem expedient, and may
make such order thereon as in the discretion of the court appears
proper.

OPEN SPACES ACT 1906 - SECT 5
Transfer to local authority by owners of open spaces subject to
rights of user.

5.(1) Where any open space is subject to rights of user for
exercise and recreation in the owners or occupiers, or both, of any
houses round or near the same, whether the rights are secured by
covenant or not, the owner of the open space may, with the
consent, signified by a special resolution, of such owners or
occupiers, or both, as the case may require,

(a)convey to any local authority his estate or interest in the open
space in trust for the enjoyment of the public; or

(b)grant to any local authority in trust as aforesaid any term of
years or other limited interest in or any right or easement over
the open space; or

(c)make an agreement with any local authority for the opening to
the public of the open space and the care and management thereof
by the local authority either at all times or at any specified
times:

(2) Where any person has any term of years or other limited
interest in any such open space this section shall apply to him
with reference to that interest in like manner as it applies to
the owner of the open space.

(3) Where any open space is used as a place of exercise and
recreation for the inhabitants of certain houses, and the property
and right of user is vested in one or more persons as owners or
occupiers of the houses, those owners and occupiers (if any) may
convey to a local authority in trust for the public a right to
enter upon, use, and enjoy the open space subject to such terms
and conditions as may be agreed upon.

OPEN SPACES ACT 1906 - SECT 6
Transfer of disused burial grounds to local authority.

6. The owner of any disused burial ground may convey the burial
ground to, or grant any term of years or other limited interest
therein to, or make any agreement with, any local authority for the
purpose of giving the public access to the burial ground, and
preserving the same as an open space accessible to the public and
under the control of the local authority, and for the purpose of
improving and laying out the same.

OPEN SPACES ACT 1906 - SECT 7
Power of corporation, &c. to convey land for open space.

7.(1) Any corporation (other than a municipal corporation) or persons
having power, either with or without the consent of any other
corporation or persons, to sell any land may, but with the like
consent (if any), convey, for or without any consideration, to any
local authority that land, or any part thereof, for the purpose of
the same being preserved as an open space for the enjoyment of the
public under this Act, and may so convey the same with or without
conditions, and the local authority may accept the land for that
purpose, and, if conditions are imposed, subject to such conditions.

(2) Where a corporation having power under this section to convey
land are themselves a local authority, this section shall enable the
authority to appropriate their land as an open space for the
enjoyment of the public, and shall, with the necessary modifications,
apply to the appropriation in like manner as it applies to the
conveyance.

OPEN SPACES ACT 1906 - SECT 8
Special resolutions and consents.

8.(1) A resolution shall for the purposes of this Act be a special
resolution when it has been

(a)passed by a majority of at least two-thirds of the persons
present at a meeting summoned as hereinafter provided; and

(b)confirmed by another resolution passed by a majority of at least
two-thirds of the persons present at a meeting summoned as
hereinafter provided and held after an interval of not less than
one month from the first meeting.

(2) A meeting of trustees for the purposes of this Act shall be
summoned by a notice stating generally the object of the meeting,
which notice shall be left at or sent by post, at least one month
before the date of the meeting, to the last known or usual place
of abode of each trustee.

(3) A meeting of owners and occupiers of houses under this Act
shall be summoned by a notice stating generally the object of the
meeting, which notice shall be left at, or sent through the post
to, each of such houses, at least one month before the date of
the meeting, and shall be inserted as an advertisement at least
three times in any two or more papers circulating in the
neighbourhood.

(4) If at any meeting of trustees or of owners and occupiers under
this Act a resolution with respect to an open space is rejected,
no meeting of the trustees, or, as the case may be, the owners or
occupiers, shall be called or held with the same object and with
respect to the same open space until the expiration of three years
from the date of the rejection.

(5) A meeting of owners or occupiers of houses for the purposes of
this Act shall not be held between the first day of August in one
year and the thirty-first day of January in the following year.

Power of local authority to acquire open space or burial ground.

OPEN SPACES ACT 1906 - SECT 9

9. A local authority may, subject to the provisions of this Act,

(a)acquire by agreement and for valuable or nominal consideration by
way of payment in gross, or of rent, or otherwise, or without any
consideration, the freehold of, or any term of years or other
limited estate or interest in, or any right or easement in or
over, any open space or burial ground, whether situate within the
district of the local authority or not; and

(b)undertake the entire or partial care, management, and control of
any such open space or burial ground, whether any interest in the
soil is transferred to the local authority or not; and

(c)for the purposes aforesaid, make any agreement with any person
authorised by this Act or otherwise to convey or to agree with
reference to any open space or burial ground, or with any other
persons interested therein.

OPEN SPACES ACT 1906 - SECT 10
Maintenance of open spaces and burial grounds by local authority.

10. A local authority who have acquired any estate or interest in
or control over any open space or burial ground under this Act
shall, subject to any conditions under which the estate, interest,
or control was so acquired

(a)hold and administer the open space or burial ground in trust to
allow, and with a view to, the enjoyment thereof by the public as
an open space within the meaning of this Act and under proper
control and regulation and for no other purpose; and

(b)maintain and keep the open space or burial ground in a good and
decent state,

Special provisions as to management of burial grounds and removal of
tombstones.

OPEN SPACES ACT 1906 - SECT 11

11.(1) A local authority shall not exercise any of the powers of
management under this Act with reference to any consecrated burial
ground unless and until they are authorised so to do by the
licence or faculty of the bishop.

(2) The playing of any games or sports shall not be allowed in
any burial ground in or over which a local authority have acquired
any estate, interest, or control under this Act, except that

(a)in the case of a consecrated burial ground, the bishop by
licence or faculty; and

(b)in the case of any burial ground which is not consecrated, the
persons from whom the local authority have acquired the estate,
interest, or control in or over the same,

(3) In the case of any disused burial ground, at least three
months before removing or changing the position of any tombstone or
monument, a local authority shall

(a)prepare a statement sufficiently describing by the name and date
appearing thereon the tombstones and monuments standing or being in
the ground, and such other particulars as may be necessary, and
shall cause this statement to be deposited with the clerk of the
local authority, and to be open to inspection by all persons; and

(b)insert an advertisement of the intention to remove or change the
position of such tombstones and monuments three times at least in
some newspaper circulating in the neighbourhood, and by that
advertisement give notice of the deposit of the statement
hereinbefore described, and of the place at which and the hours
within which the same may be inspected; and

(c)place a notice in terms similar to the advertisement on the door
of the church (if any) to which the burial ground is attached, and
deliver or send by post a notice to any person known or believed
by the local authority to be a near relative of any person whose
death is recorded on any such tombstone or monument.

(4) In the case of a consecrated ground, no tombstone or monument
shall be removed or its position changed without a licence or
faculty from the bishop, and no application for such licence or
faculty shall be made until the expiration of one month at least
after the appearance of the last of such advertisements as
aforesaid:

Provided that on an application for a licence or faculty nothing
shall prevent the bishop from directing or sanctioning the removal
or change of position of any tombstone or monument, if he is of
opinion that reasonable steps have been taken to bring the intention
to effect such removal or change of position to the notice of some
person having a family interest in the tombstone or monument.

(5) A licence or faculty for the purposes of this section may be
granted by the bishop of the diocese within which the consecrated
burial ground is situate on the application of the local authority
who have acquired any estate, interest, or control in or over the
burial ground, and may be granted subject to such conditions and
restrictions as to the bishop may seem fit.

OPEN SPACES ACT 1906 - SECT 12
Powers over open spaces and burial grounds already vested in local
authority.

12. A local authority may exercise all the powers given to them by
this Act respecting open spaces and burial grounds transferred to
them in pursuance of this Act in respect of any open spaces and
burial grounds of a similar nature which may be vested in them in
pursuance of any other statute, or of which they are otherwise the
owners.

OPEN SPACES ACT 1906 - SECT 13
Provision for compensation.

13. No estate, interest, or right of a profitable or beneficial
nature in, over, or affecting an open space or burial ground shall,
except with the consent of the person entitled thereto, be taken
away or injuriously affected by anything done under this Act without
compensation being made for the same; and such compensation shall be
paid by the local authority by whom the estate, interest, or right
is taken away or injuriously affected, and shall, in case of
difference, be ascertained and provided in the same manner as if
the same were compensation for lands purchased and taken otherwise
than by agreement or injuriously affected under the Lands Clauses
Acts.

OPEN SPACES ACT 1906 - SECT 15
Byelaws.

15.(1) A local authority may, with reference to any open space or
burial ground in or over which they have acquired any estate,
interest, or control under this Act, make byelaws for the regulation
thereof, and of the days and times of admission thereto, and for
the preservation of order and prevention of nuisances therein, and
may by such byelaws impose penalties recoverable summarily for the
infringement thereof, and provide for the removal of any person
infringing any byelaw by any officer of the local authority or
police constable.

Subs.(2) rep. by 1972 c.9 (NI) s.149 sch.9

(3) The trustees or other persons having the care and management of
any open space, who in pursuance of this Act admit to the
enjoyment of the open space any persons not owning, occupying, or
residing in any house fronting thereon, shall have the same powers
of making byelaws as are conferred on a committee of the
inhabitants of a square by section four of the Town Gardens
Protection Act, 1863, and that section shall apply accordingly.

Ss.1618 rep. by 1972 c.9 (NI) s.149 sch.9

Savings.

OPEN SPACES ACT 1906 - SECT 19

19. This Act shall not apply to

(b)any land belonging to His Majesty in right of His Crown....; nor

(c)any garden, ornamental ground, or ornamental land for the time
being under the management of the Commissioners of Works,....

OPEN SPACES ACT 1906 - SECT 20
Definitions.

20. In this Act, unless the context otherwise requires,

The expression "open space" means any land, whether inclosed or not,
on which there are no buildings or of which not more than
one-twentieth part is covered with buildings, and the whole or the
remainder of which is laid out as a garden or is used for
purposes of recreation, or lies waste and unoccupied;

....

The expression "owner"

(a)used in relation to any open space (not being a burial ground),
means any person in whom the open space is vested for an estate
in possession during his life or for any larger estate;

(b)used in relation to a house, includes any person entitled to any
term of years in the house;

(c)used in relation to a burial ground, means the person in whom
the freehold of the burial ground is vested whether as appurtenant
or incident to any benefice or cure of souls or otherwise:

The expression "occupier," used in relation to a house, means the
person rated to the relief of the poor in respect of the house:

The expression "burial ground" includes any churchyard, cemetery, or
other ground, whether consecrated or not, which has been at any
time set apart for the purpose of interment:

["District council" means a council established under the Local
Government Act (Northern Ireland) 1972:]

The expression "disused burial ground" means any burial ground which
is no longer used for interments, whether or not the ground has
been partially or wholly closed for burials under the provisions of
a statute or Order in Council:

The expression "building" includes any temporary or movable building.

OPEN SPACES ACT 1906 - SECT 21
Application of Act to Ireland.

21.(1) In the application of this Act to Ireland

Para.(a) spent

(b)Reference to any local or private Act of Parliament shall be
construed as including any Act of the Parliament of Ireland;

(c)References to the Charity Commissioners shall be construed as
references to the Commissioners of Charitable Donations and Bequests
for Ireland;

(d)The provisions of this Act so far as they relate to county and
parish councils shall not apply.

(2) Nothing in this Act shall apply to any land for the time
being under the management of the Commissioners of Public Works in
Ireland.

OPEN SPACES ACT 1906 - SECT 23
Repeal.

23. ....

(a)Nothing in this repeal shall affect the validity or operation of
any byelaw made under any enactment so repealed, but all such
byelaws shall continue in force as if made under that Act, and may
be revoked and altered accordingly.

S.24 rep. by SLR 1927

OPEN SPACES ACT 1906 - SECT 25
Short title.

25. This Act may be cited as the Open Spaces Act, 1906.

Schedule rep. by SLR 1927