R Peter Day v Shropshire Council

JurisdictionEngland & Wales
JudgeMrs Justice Lang
Judgment Date19 December 2019
Neutral Citation[2019] EWHC 3539 (Admin)
Date19 December 2019
Docket NumberCase No: CO/5071/2018
CourtQueen's Bench Division (Administrative Court)

[2019] EWHC 3539 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Birmingham Civil Justice Centre

33 Bull St, Birmingham, B4 6DS

Before:

Mrs Justice Lang DBE

Case No: CO/5071/2018

Between:
The Queen on the application of Peter Day
Claimant
and
Shropshire Council
Defendant
(1) Shrewsbury Town Council
(2) CSE Developments (Shropshire) Limited
Interested Parties

Alex Goodman (instructed by Leigh Day Solicitors) for the Claimant

Killian Garvey and Jonathan Wright (instructed by Legal and Democratic Services) for the Defendant

The Interested Parties did not appear and were not represented

Hearing dates: 17 July and 28 November 2019

Approved Judgment

Mrs Justice Lang
1

The Claimant seeks judicial review of the decision of Shropshire Council, dated 8 November 2018, in which it granted planning permission with conditions, for a development of 15 dwellings and an access road, on land off Greenfields Recreation Ground, Falstaff Street, Shrewsbury, Shropshire (“the Site”).

2

Most of the Site is owned by the Second Interested Party (“IP2”), who made the application for planning permission. Previously, Shrewsbury Town Council (“the Town Council”) owned the entire Site, but disposed of it to IP2 on 4 October 2017. A small portion of the Site is still in the ownership of the Town Council. It is part of the car park for the Greenfields Recreation Ground, and the Town Council has granted IP2 an easement across it, to provide a right of way from Falstaff Street.

3

The Claimant resides near the Site and objects to the proposed development, as do many other local residents, who have formed the Greenfields Community Group. The objectors consider the Site to be a part of the Greenfields Recreation Ground, held as open space for public use under a statutory trust. They contend that it was a valued community asset until it was fenced off by IP2 in the summer of 2018.

4

Permission to apply for judicial review was refused on the papers on 31 January 2019 but granted at an oral renewal hearing on 14 March 2019.

History

5

According to the minutes of a meeting of the Council of the Borough of Shrewsbury (“the Borough Council”), held on 10 November 1924, a petition was presented by Mr Councillor Rich on behalf of residents in the Greenfields District seeking the provision of playing fields because of the danger to children from fast moving traffic. The petition was referred to the Estates and Watch Committees respectively for their consideration.

6

The minutes of a meeting of the Estates Committee, held on 12 October 1925, included a report from the Estates Committee to the Borough Council concerning the purchase of land for use as a recreation ground. Item 1 stated:

“In accordance with the desire of the Council, your Committee have considered the possibility of providing a Recreation Ground for the Greenfields District, and have been in negotiation with Mr. John Barker, the owner of the Broomhall Estate, for the purchase of a portion of the meadow lying to the back of Broomhall, 3.4 acres in extent shown on the plan. The Owner is willing to sell this land to the Council for the sum of £700 …. Your Committee are of opinion that the terms of both purchase and Sale are fair.

….

Your Committee consequently recommend that the Purchase …. mentioned be effected ….. and that application be made to the Ministry of Health for sanction to borrow the sum of £750 in respect of the Recreation Ground provision referred to…”

7

In item 2 of the same report, the Estates Committee recommended that the Borough Council purchase from Mr William Capper a piece of land immediately adjoining the land to be purchased from Mr John Barker, for the sum of £300, so that “by combining the Broomhall land with the [Capper] land a much needed and most useful Recreation Ground will be provided for the Greenfields District”. The land was currently let to the Borough Council. It was recommended that an application be made to the Minister of Health for approval to borrow the sum of £300 to fund the purchase.

8

The minutes of the meeting of the Estates Committee dated 8 February 1926 recorded that a loan of £300 was obtained from the Ministry of Health in order to purchase the Capper Land for a recreation ground.

9

The land purchased from Mr Barker (hereinafter “the Barker Land”) was conveyed to the Mayor and Alderman Burgesses of the Borough of Shrewsbury by conveyance dated 26 March 1926 for seven hundred pounds. The Claimant's evidence was that the plan attached to the conveyance that the Barker Land included the Site of the proposed housing development. Helpfully, an earlier land valuation map dated 1910 showed the extent of the Barker estate. In my view, this evidence was compelling.

10

An option to purchase the land from Mr Capper (hereinafter “the Capper Land”) was exercised on 27 March 1926 and a conveyance was completed. The Barker deed mentions the acquisition of the Capper Land.

11

Thereafter, there is clear evidence that the Borough Council did indeed provide a recreation ground on the Barker and Capper Lands.

12

On 11 February 1929 the minutes of the Estates Committee recorded that the Barker and Capper Lands had been joined as a single recreation ground and that it proposed to allow tipping into a ditch between the original two fields to level them:

“Greenfields Recreation Ground. Raising the levels.

This Recreation Ground is comprised of two fields. One was bought from the Broomhall Estate [Barker] approached from the end of Falstaff Street, and the other from Mr William Capper lying between the Broom hall field at the footpath leading from Greenfields to Ditherington (see reports 1924–5, p.174, 175).

Between the two fields is a ditch and a generally hollow space, which during the winter especially is very wet at no time is this low part fit for children to play games upon, because of its saucer like formation.”

13

The minutes of the Borough Council for its meeting on 27 July 1931 recorded that the Council decided to allow a right of way across “Greenfields Recreation Ground” to allow access by Mr Barker to allotments to the north.

14

A plan by the Borough Surveyor at the Council, dated March 1935, attached to a deed dated 31 July 1935 relating to a neighbouring parcel of land proposed for school use, labelled the whole area of what had been the Barker and Capper Land as “Public Recreation Ground”. The Claimant's submission that the area marked as “Public Recreation Ground” included the Site was, in my view, compelling.

15

The minutes of a meeting of the Estates Committee on 23 February 1942 recorded an agreement to allocate a “small portion of Greenfields Recreation Ground” for 10 to 12 allotments on a temporary basis “subject to its reinstatement within six months of the end of the war”.

16

The evidence shows that the land allocated for allotments was not reinstated as part of the Recreation Ground within six months of the end of the war. In the 1950s the Borough Council was still seeking to re-locate the allotments. The minutes of the Allotments Committee, in 1954, stated ( semi-illegible text in italics):

“The Borough Surveyor has been asked by the County Council whether the Corporation would be interested in purchasing a piece of the land containing approximately [ 18] acres. The matter has been referred to the Allotments Committee because there are 13 temporary allotments still being cultivated on the Recreation Land adjoining under powers contained in the Defence Regulations which had expired in October 1953. Alternative accommodation would therefore have to be found for the 13 tenants.”

17

The County Council had earlier purchased land adjacent to the Greenfields Recreation Ground for education purposes, namely, to build a school. The Estates Committee minutes in 1956 recorded that thirteen acres of education land adjacent to the recreation ground were to be acquired “partly for use as a public open space partly to provide alternative sites for several temporary allotments which are still being [cultivated?] on the nearby Recreation Ground”.

18

The Claimant's evidence, by reference to the 1954 Ordnance Survey Map which identified an area as “Allotment Gardens”, was that the Site appears to have been in the portion of the recreation ground which was allocated for allotments in 1942. In my view, this evidence was compelling.

19

The allotments fell into disuse, and by the late 1970s that area was being used as a Council tree nursery. However, the 1983 Ordnance Survey map still marked the area as “Allotment gardens”.

20

Gary Farmer, who is employed by the Town Council as an Operations Manager, made a witness statement giving an account of the use of the Site since 1978, based on his experience as a gardener working in the Council Parks Department of Shrewsbury and Atcham Borough Council, in the late 1970s and 1980s. He said that from 1978 the Site was separate from Greenfields Recreation Ground, divided by a hedge, and there was no public access to it. It was an overgrown wilderness that showed signs of previously having been cultivated during the World War II dig for victory campaign. The Council established a tree nursery on the Site, growing trees which were then transplanted to provide new woodlands on borough council greenspaces. The area was gated and secured to prevent unauthorised access. After many years the requirement for tree nurseries diminished as all the new woodland had been created. The nursery was left to run down and the area became overgrown. The fencing was not maintained and so the public was able to gain access.

21

Mr Michael Banks, who is employed by the Town Council as Outdoor Recreation and Asset Manager, made a witness statement in which he stated that he had been aware of the Site since 1984 when he was responsible for checking the trees in the nursery. He confirmed that the land was secured to...

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3 cases
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    • Court of Appeal (Civil Division)
    • 23 December 2020
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