In February 1995 NLLDC sought the Advice of a Barrister as to whether enclosure of the former Lammas Lands would be legal. His opinion was that there was no conflict with the 1934 Walthamstow Corporation Act, but that there was a potential conflict with the 1904 Leyton Corporation Act, which had provided that the former Lammas Lands should be kept as open space in perpetuity for exercise and recreation. In our Barrister’s opinion, “The Park Authority and Local Authority are unable simply to enclose these Lammas Lands and prevent access to the general public. In my view, that land has to remain a public open space. The problem arises in the legal definition of “public open space’.”
Public is generally taken to mean “members of the community.” The Open Spaces Act 1906 section 20 defines open space as “any land, whether inclosed or not, ... 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 Town and Country Planning Act 1990 section 336 defines open space as “any land laid out as a garden or used for the purposes of public recreation.” So land that is enclosed but is being used for public recreation, even if money has to be paid to gain access, can be defined as open space. But where there is no official entry point for the general public, this cannot be counted as public open space.
More recent opinion (August 2007) from another Barrister, questions whether allotment gardening could be held to constitute “recreation and relaxation for the general public,” and again states that the land is not allowed to be fenced off.