Public rights under a statutory trust of recreation land are only extinguished if, prior to disposing of land, the local authority complies with the bespoke consultation requirements of section 123 of the Local Government Act 1972.
In Day v Shropshire Council [2023] UKSC 8, the Supreme Court has unanimously allowed an appeal by the appellant, a local resident, quashing the planning permission granted by the respondent for the building of houses on recreation land in Shrewsbury.
Land acquired and laid out by local councils as recreation grounds for residents under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of the public who have a right to go onto the land for recreation.
Section 123 of the 1972 Act requires a public authority disposing of such land to advertise their intention to do so in a local newspaper for two consecutive weeks and to consider any objections to the disposal they receive. Compliance with that procedure frees the land from any public trust.
Section 128 provides that a disposal of land subject to the consultation requirement shall not be invalid because the requirement had not been complied with and the purchaser need not be concerned with compliance.
The case concerned the Greenfields Recreation Ground in Shrewsbury which was subject to a statutory trust under either the 1875 or 1906 Acts.
In October 2017, Shrewsbury Town Council sold the land to CSE Development (Shropshire) Ltd. The Council was unaware of the statutory trust so the consultation procedure under section 123 of the 1972 Act was not followed. CSE subsequently sought and the respondent granted planning permission to build houses on the land.
The appellant brought judicial review proceedings challenging the grant of planning permission arguing that as the consultation provisions were not complied with the land remained subject to the statutory trust and the respondent had failed to consider it when granting permission.
The court considered that, even if the public rights under the trust survived the sale, the rights were unenforceable against CSE. The Court of Appeal decided that the statutory trust was extinguished on sale of the land.
The Supreme Court disagreed. Parliament used very clear words in settling the provisions of section 123 to enable the public to have the opportunity to learn about and object to a proposed sale of recreation land.
Section 128 provided a useful protection for those dealing with public authorities but could not be used to override the statutory trust which continued and was enforceable against the purchaser.
Louise Clark is a property law consultant and mediator
