R (on the application of Day) v Shropshire Council [2023] UKSC 8

Dr Day challenged planning permission granted for housing development on land forming part of Greenfields Recreation Ground. The land had been sold by Shrewsbury Town Council to a developer without complying with statutory advertising requirements for disposal of land held on statutory trust for public recreation. The Supreme Court held the statutory trust was not extinguished by the sale.

Facts

Shrewsbury Town Council sold land forming part of Greenfields Recreation Ground to CSE Development (Shropshire) Limited in October 2017. The land had been acquired in 1926 following a petition from local residents seeking playing fields. The land was held on statutory trust for public recreation under either the Public Health Act 1875 or the Open Spaces Act 1906.

Shrewsbury Town Council did not realise the land was subject to a statutory trust and failed to comply with section 123(2A) of the Local Government Act 1972, which requires advertising the intention to dispose of such land in local newspapers for two consecutive weeks and considering objections. CSE subsequently obtained planning permission from Shropshire Council for 15 dwellings.

Dr Day, a local resident, investigated the history of the recreation ground and discovered its statutory trust status. He brought judicial review proceedings challenging the grant of planning permission.

Issues

Primary Issue

Whether the statutory trust created under the PHA 1875 or OSA 1906 was extinguished when land was disposed of without compliance with section 123(2A) LGA 1972, by operation of section 128(2) LGA 1972.

Secondary Issue

Whether the existence of the statutory trust was a material consideration for the planning authority when deciding whether to grant planning permission.

Judgment

The Supreme Court unanimously allowed the appeal and quashed the planning permission. Lady Rose delivered the judgment.

The Court held that section 128(2) LGA 1972 does not operate to extinguish public rights under statutory trusts created by section 164 PHA 1875 or section 10 OSA 1906. Those rights are only extinguished if the local authority complies with the procedure in section 123(2A) and (2B).

Very clear words indeed were used in section 123(3) as originally enacted and in the amended provisions. Those expressly stated that where the statutory requirements were complied with, the land disposed of would be freed from any trust arising solely by reason of its being public trust land.

Lady Rose emphasised the historical approach of courts to such provisions:

The general powers conferred on local authorities to buy, appropriate, lease and sell land for their ordinary statutory purposes have always been subject to special conditions or restrictions either set out expressly in the legislation or as construed by the courts. Further, statutory trust land has generally been treated as different from other land, so that wide powers applicable to disposals of all land held are not regarded as overriding the public’s rights to enjoy recreation land.

The Court rejected the argument that simple transfer into private ownership extinguishes the trusts, noting public rights in village greens and highways survive such transfers.

The elaborate provisions of section 123 were clearly designed to secure that members of the public should have ample opportunity to learn what was proposed and the right to contend that the statutory trust land should not be sold. It cannot be right to construe section 128(2)(b) as meaning that Parliament provided a few sections later in the same Act for the extinguishment of the trust without any notice to the public and without any member of the public having the right to object as the automatic result of a sale by the local authority.

Implications

This judgment has significant implications for local authorities disposing of recreation grounds and open spaces:

• Local authorities must properly investigate the legal status of land before disposal
• Failure to comply with advertising requirements under section 123(2A) means the statutory trust continues to bind the land even after sale to a private purchaser
• Section 128(2) LGA 1972 does not provide blanket protection to purchasers from the consequences of non-compliance with statutory trust provisions
• Planning authorities must consider the existence of statutory trusts as material considerations when determining applications

The judgment reinforces the importance of public recreation spaces and the statutory protections afforded to them, while highlighting the need for robust governance procedures in local authority land transactions.

Verdict: Appeal allowed. The grant of planning permission was quashed. The statutory trust was not extinguished by the disposal of land without compliance with section 123(2A) LGA 1972, and section 128(2) does not operate to free the land from such trusts. The continued existence of the statutory trust was a material consideration that the planning authority failed to take into account.

Source: R (on the application of Day) v Shropshire Council [2023] UKSC 8