Town and country planning – Public open space – Material consideration – Land subject to trust for public recreational purposes – Respondent local authority granting planning permission for residential development – Appellant local resident applying for judicial review – High Court allowing claim in part but refusing remedy – Court of Appeal dismissing appeal – Appellant appealing – Whether trust and right of public recreation over land subsisting after disposal – Appeal allowed
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. However, 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 Court of Appeal dismissed the appellant’s appeal against that decision holding that the statutory trust was extinguished on the sale of the land: [2020] EWCA Civ 1751; [2020] PLSCS 233. The appellant appealed to the Supreme Court.
Held: The appeal was allowed.
(1) Section 123(2A) and (2B) of the 1972 Act provided that, before disposing of land which was subject to a statutory trust, the local authority had to advertise its intention to do so in the local newspaper for two consecutive weeks. It then had to consider any objections to the proposed disposal that might be made. If the local authority disposed of land having complied with that procedure then, according to section 123(2B) of the 1972 Act, the land was freed from any public trust.
The respondent accepted that before the sale, the land was subject to a statutory trust. But it argued that the statutory trust did not survive the disposal of the land to a private party, even if the advertising and consultation procedure in section 123(2A) was not complied with. The effect of section 128(2) of the 1972 Act was that, upon the sale of the land, the statutory trust was extinguished.
However, the simple transfer of the land subject to the statutory trust into private ownership was not sufficient to extinguish the trusts. If the statutory trust over the land was extinguished as soon as the land was sold to a private person, there would be little need for section 123(2B) or section 128(2)(b). The restrictions and conditions attached to the sale of statutory trust land would be easily circumvented.
(2) Having considered the history of the provisions and how they had evolved in response to case law, section 128(2) properly construed did not operate to extinguish the rights enjoyed by the public under the statutory trusts. Those rights were only extinguished if the local authority complied with the bespoke procedure in section 123(2A) and (2B): Attorney-General v Southampton Corporation (1859) 1 Giff 363, Blake v Hendon Corporation [1962] 1 QB 283, Laverstock Property Co Ltd v Peterborough Corporation (1972) 24 P & CR 181, Shonleigh Nominees Ltd v Attorney General [1974] 1 WLR 305 and R (Structadene Ltd) v Hackney London Borough Council [2000] PLSCS 243; [2001] 2 All ER 225 considered.
Parliament, when enacting Part VII of the 1972 Act and amending those provisions, had no doubt that clear words were needed for a power to dispose of land to be effective in extinguishing the public’s rights under the statutory trusts created in public walks and pleasure grounds or open spaces.
Very clear words had been used in section 123(3) which 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”.
(3) Despite the limited application of the protection as construed in Structadene, section 128(2) served a useful purpose in many instances for some people dealing in land with the authority or claiming under the authority. It conferred useful protection in respect of some provisions within Part VII of the 1972 Act. It was also incorporated in respect of disposals of land acquired for planning purposes (section 233(9) of the Town and Country Planning Act 1990): R v Pembrokeshire County Council, ex parte Coker [1999] 4 All ER 1007; [1999] PLSCS 172 considered.
The fact that, on that construction, the second interested party was not fully protected from the adverse consequences of the respondent’s failings did not mean that section 128(2)(b) was otiose. Nor was it so misleading as to justify extending the scope of the protection so that it “protects” the person dealing with the local authority from the public’s rights to use the land.
(4) Therefore, section 128(2)(b) neither extinguished the public rights under the statutory trust nor had the effect that the rights, in so far as they subsist, could not be enforced against the second interested party; and it should not be read as having accidentally done so. Furthermore, the public recreation rights over the recreation ground were material considerations that needed to be taken into account when it came to giving planning permission for housing development.
The continuing existence of the statutory trust over the land was an important factor when considering a planning application. Thus, as that was not considered, the grant of planning permission had to be quashed.
(5) It was also impossible to say, for the purposes of section 31(2A) of the 1981 Act, that it was highly likely that the outcome of the planning application would not have been substantially different if the mistake had not been made.
Alex Goodman and Kimberley Ziya (Instructed by Leigh Day) appeared for the appellant; Killian Garvey (Instructed by Shropshire Council Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Day) v Shropshire Council
