Town and country planning – Public open space – Material consideration – Town council disposing of land subject to statutory trust for public recreational purposes – Respondent local authority granting planning permission for residential development – Appellant local resident applying for judicial review – Respondent refusing application – Appellant appealing – Respondent cross-appealing against no costs order – Whether trust and right of public recreation over land subsisting after disposal – Appeal and cross-appeal dismissed
The appellant local resident challenged a decision of the respondent local planning authority, on the application of the second interested party, to grant conditional planning permission for land off Greenfields Recreation Ground, Falstaff Street, Shrewsbury, Shropshire for a development comprising 15 dwellings.
The site was subject to a statutory trust for public recreational purposes under section 10 of the Open Spaces Act 1906. In 2017, the first interested party local town council, which owned the site, sold the freehold to the second interested party developer, apart from a small portion of retained land. It was unaware of the trust and failed to comply with the mandatory statutory advertising requirements under the Local Government Act 1972; in disposing of the site as it did, the first interested party acted unlawfully. However, as a result of the statutory scheme, the disposal of the freehold was still valid.
The High Court held that the respondent had acted unlawfully in failing to take reasonable steps to acquaint itself with the site’s history and legal status and consider the legal implications of the sale before determining the planning application. She did not determine whether the trust had ceased upon the sale of the site but held that, if that disposal did not bring the trust to an end, the trust obligations were unenforceable against the developer.
Applying section 31(2A) of the Senior Courts Act 1981, the judge concluded that, had the respondent not erred, it was highly likely that it would in any event have granted planning permission. Relief was therefore refused: [2019] EWHC 3539 (Admin).
The appellant appealed. The respondent cross-appealed against the judge’s decision that there should be no order for costs.
Held: The appeal and cross-appeal were dismissed.
(1) A section 10 trust was not a trust in the usual private law sense. Although the local authority was obliged to hold the relevant legal title for the benefit of the public, the trust did not have any beneficiary recognised as such in equity; nor was it a charitable trust or a non-charitable purpose trusts which equity recognised. It was a statutory construct in respect of which parliament alone had determined the obligations and rights involved. A section 10 trust imposed an obligation on a local authority to hold, maintain, control and regulate the land to allow enjoyment of it by the public as open space and for no other purpose.
(2) The relevant power of disposal was in section 123 of the 1972 Act which was only exercisable if there had been compliance with the statutory requirements of section 123(2A) for advertisements and consideration of objections. Where those requirements were met, pursuant to section 123(2B), by virtue of the disposal, the land was freed from the section 10 trust. Where an authority purported to dispose of land subject to a section 10 trust without complying with the section 123(2A) requirements, section 123(2B) had no application; but section 123 had to be read with section 128(2), which applied on a disposition whether or not the section 123(2A) requirements had been met and which was expressly for “… the protection of purchasers”.
(3) Section 128(2)(a) was focused on the legal title of the disponee. Even where a disposal of land subject to a section 10 trust was made without the section 123(2A) requirements having been met, it ensured that the disposal was valid and that the disponee had valid legal title following that disposal.
Section 128(2)(b) provided that a disponee “shall not be concerned to see or enquire whether any… [section 123(2A)] requirement has been complied with”. As section 128(2)(a) rendered any reference to constructive notice redundant for the purposes of legal title, it could only be construed as giving the disponee title to the land free from the section 10 trust where he had no more than constructive notice of that failure. He would take the land without the burden of the section 10 trust unless he had actual knowledge that the requirements had not been met. A disponee who took with actual knowledge of the non-compliance with section 123(2A) would take the legal title, but the section 10 trust would continue. The ownership and control over the land would be divorced from the local authority’s obligations under section 10, and a transfer back to the local authority might be enforceable against the disponee. Whilst the public benefit of the land as a recreation ground in the local authority’s ownership would have ceased, the disponee would probably be unable to develop the site: the parties would have to come to an arrangement whereby the land was restored to the local authority to enable the requirements to be met and the land released from the trust.
In the present case, the development site was sold to the second interested party without compliance with section 123(2A), but it did not have actual knowledge of that failure. Therefore, the section 10 trust and the right of public recreation over that land (with its concomitant rights and obligations) did not subsist.
(4) Although the judge found that the respondent had committed legal errors, by failing properly to investigate the history and status of the site, she was entitled to conclude that the errors were not material because, if they had not been made, the respondent would have come to precisely the same decision on the planning application. In essence, she concluded there was no material legal error.
(5) The judge had a wide discretion in relation to costs; and she was entitled to conclude that the appropriate order was no order for costs. The appellant succeeded on all the heavily contested issues, upon which the time and effort of the parties and the judge was largely expended. The judge was clearly entitled to conclude that, on the basis of her analysis, the just, reasonable and proportionate order was for each party to bear their own costs.
Alex Goodman (instructed by Leigh Day Solicitors) appeared for the appellant; Killian Garvey (instructed by Shropshire Council Legal and Democratic Services) appeared for the respondent; the interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Day) v Shropshire Council
