LOCAL AUTHORITIES AND TRUSTEES STATUTORY PROVISIONS UNDER WHICH LOCAL AUTHORITIES HOLD ACQUIRE AND ADMINISTER GIFTS AND LAND OG 56 C3

The Charity Commission for England and Wales

The Regulator for Charities in England and Wales

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OPERATIONAL GUIDANCE LOCAL AUTHORITIES AND TRUSTEES STATUTORY PROVISIONS UNDER WHICH LOCAL AUTHORITIES HOLD ACQUIRE AND ADMINISTER GIFTS AND LAND OG 56 C3 - 26 July 2000

Purpose: This guidance provides details of how local authorities hold acquire and administer gifts and land and when we need to become involved in making Schemes and Orders

Divisional responsibility
For action:	Charity Support Division	For information:	Investigation Division Registration Division

Contents
1. Gifts made for the benefit of the inhabitants 2. Land held on trust for the purposes of public recreation 3. Land held as open space for any charitable purpose 4. Parochial charities notably allotment charities and recreation grounds 5. Acquistion of the freehold of or an interest in open spaces and burial grounds 6. Maintenance of a closed churchyard
Meaning of expressions - list of Glossary terms used in this Guidance Index to further related information


The law	Refer to a lawyer	Refer to an accountant


	1. Gifts made for the benefit of the inhabitants
	S.139 of the Local Government Act 1972 enables a local authority to hold and administer gifts made for the benefit of the inhabitants of the area (except where these would be held on trust for an ecclesiastical charity or a charity for the relief of poverty).
	If we discover a local authority acting as trustee of an ecclesiastical charity or a charity for the relief of poverty we should point out that it is in breach of s.139 of the Local Government Act 1972. We should seek to regularise the trusteeship. If there is no other convenient way of doing this we should offer to make a Scheme to regularise the position.
	Occasionally charities will be set up for recreational and educational purposes for the benefit of people in need. In those cases it will be a matter of construction as to whether or not the main purpose of the charity is the relief of need or for recreation or education.
	Legal advice should be sought in such cases before deciding whether a local authority would be in breach of s.139 of the Local Government Act 1972.

	2. Land held on trust for the purposes of public recreation
	S.3 of the Open Spaces Act 1906 provides for the transfer to local authorities of land held on trust for the purposes of public recreation.
	Our approval is required to any alteration of the trusts and conditions affecting the land which may be agreed by the trustees and the local authority. This approval should be given by letter settled by an Assistant Commissioner of at least PB4
	OG 56 C1 section 4 provides further guidance.

	3. Land held as open space for any charitable purpose
	S. 4 of the Open Spaces Act 1906 provides for the transfer to local authorities of land held as open space for any charitable purpose. Such transfers require the consent of the Commissioners.
	This consent should be given by Order offered and made by an Assistant Commissioner of at least PB4.
	OG 56 C1 section 4 provides further guidance.

	4. Parochial charities notably allotment charities and recreation grounds
	In addition many parish and (in Wales) community councils have become sole trustees of parochial charities notably allotment charities and recreation grounds by virtue of:
	ss.5 and 6 of the Local Government Act 1894 (which dealt with the transfer of powers relating to non-ecclesiastical matters from parish officers to the then newly formed parish councils) or;
	s.79(1) of the 1993 Act (formerly s.37(1) of the 1960 Act) which deals with the transfer of property (excluding property connected with an ecclesiastical charity) held for the benefit of inhabitants of a parish from charity trustees to the parish or community council.
	Orders under s.79(1) should be offered and made by an Assistant Commissioner of at least PB4.
	However we cannot make such an Order if the trusts of the charity require that the land is vested in the Official Custodian for Charities.
	When dealing with parochial charities we also make Orders under s.79(2) of the 1993 Act for the following purposes:
	appointing additional trustees when the trustees of a parochial charity do not have an elected member in their midst; and
	appointing additional trustees where there is a sole trustee.

	5. Acquisition of the freehold of or an interest in open spaces and burial grounds
	S.9 of the Open Spaces Act 1906 provides for the acquisition of the freehold of or an interest in open spaces and burial grounds.
	S.10 provides that a local authority having acquired such an interest under the terms of this Act shall hold and administer the open space or burial ground in trust to allow the enjoyment by the public as an open space.

	6. Maintenance of a closed churchyard
	S.215 of the Local Government Act 1972 gives parochial church councils authority to request a particular parish or community council to take over the maintenance of a closed churchyard (there is no transfer of ownership of the land in these circumstances).

	The following words and phrases are defined in the Glossary of Terms:
	•	trustee

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