R Peter Day v Shropshire Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice Hickinbottom,Lady Justice Andrews |
| Judgment Date | 23 December 2020 |
| Neutral Citation | [2020] EWCA Civ 1751 |
| Docket Number | Case No: C1/2020/0136 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 December 2020 |
[2020] EWCA Civ 1751
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
PLANNING COURT
THE HON MRS JUSTICE LANG
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice David Richards
Lord Justice Hickinbottom
and
Lady Justice Andrews
Case No: C1/2020/0136
and
Alex Goodman (instructed by Leigh Day Solicitors) for the Appellant
Killian Garvey (instructed by Shropshire Council Legal and Democratic Services) for the Respondent
The Interested Parties did not appear and were not represented
Hearing date: 4 November 2020
Approved Judgment
Lord Justice David Richards, Lord Justice Hickinbottom and
Introduction
When a local authority disposes of land which is subject to a statutory trust for public recreational purposes without complying with the relevant statutory requirements, does that trust continue or end; and, in either case, what are the legal implications for the authority and the disponee?
These issues arise in the context of a challenge by the Appellant, a local resident, to the decision of the Respondent local planning authority (“the LPA”) of 8 November 2018 to grant conditional planning permission for land described as “off Greenfields Recreation Ground, Falstaff Street, Shrewsbury, Shropshire” (“the Site”) for development comprising the building of 15 dwellings on the application of the Second Interested Party (“the Developer”).
The relevant land was subject to a statutory trust for public recreational purposes, and had been sold by the local council which owned it (not the LPA) without compliance with the mandatory statutory requirements for advertising such a disposal. In her judgment ( [2019] EWHC 3539 (Admin)), Lang J held that, if the disposal of the land did not bring the trust to an end, the trust obligations were nonetheless unenforceable as against the Developer as purchaser. She held that, in determining the planning application, the LPA acted unlawfully in failing to take reasonable steps to acquaint itself with the Site's history and legal status and to consider the legal implications of the sale, but went on to hold that, had the LPA acted lawfully, it would have recognised the unenforceability of the trust obligations against the Developer and it would still have granted the planning permission that it did. Thus, applying section 31(2A) of the Senior Courts Act 1981, she concluded that no relief should be granted; and she refused the judicial review. In this appeal, the Appellant contends that Lang J was wrong to refuse his application.
Before us, as below, Alex Goodman of Counsel appeared for the Appellant, and Killian Garvey of Counsel for the LPA. At the outset, we would like to express our appreciation for their helpful submissions.
The Factual Background
In dealing with the grounds of appeal, it will be necessary to look at some aspects of the history of the Site in a little more detail; but, generally, following uncontested findings below, the facts are now uncontroversial and for present purposes can be set out shortly.
The Site is at the western end of land that was, until 2017, owned by the First Interested Party (“the Town Council”, in law the parish council for the relevant area). The Site formed part of a much larger area which had been transferred to the Mayor, Aldermen and Burgesses of the Borough of Shrewsbury (“the Borough Council”) in two tranches in 1925–6, and was held by it subject to a statutory trust for public recreation. The land subject to the trust was transferred to the Town Council as part of wider local government reorganisation in 2010, by when the Site, having been used for allotments during the Second World War and then as a council tree nursery, was wasteland.
In 2012, the Town Council sought planning permission for a site slightly smaller than the Site, but essentially covering similar land, for the building of eight “eco-homes”. At that time, it was unaware that the trust applied to this land, and so did not disclose that fact in its application. On 10 February 2012, the LPA's Central Planning Committee approved the application; and, on 23 March 2016, the LPA granted outline planning permission subject to an agreement under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”). In respect of that grant, reserved matter approvals have not been granted and the planning permission has not been implemented. The Appellant considers that that grant may have expired by effluxion of time; but the evidence appears to suggest that it may still be extant.
In the meantime, in 2017, save for a small portion of land in its south-east corner which was retained by the Town Council (“the Retained Part”), the freehold of the Site was sold to the Developer, in circumstances in which the Town Council again did not disclose the existence of the trust, because it was then still unaware that any trust applied. We shall refer to the Site less the Retained Part as “the Development Site”.
It is, now, uncontroversial that:
i) Until the disposal of the Development Site, the whole Site was held by the Town Council under a statutory trust for public recreation.
ii) The Town Council did not put the Developer on notice (and the Developer in fact did not know) that there was, or even might be, such a trust attaching to the land.
iii) Although the Site was advertised as being for sale, the Town Council sold the freehold of the Development Site to the Developer without following the required statutory procedure for the disposal of land subject to such a trust, namely advertisement for two consecutive weeks in a local newspaper and the subsequent consideration of any objections; and, in disposing of the Site as it did, the Town Council acted unlawfully.
iv) However, as a result of the statutory scheme, the disposal of the freehold to the Developer is still valid.
As to the statutory trust, Lang J did not determine whether it had ceased upon the sale of the Development Site to the Developer but held:
i) Even if the disposal of the Site did not discharge the trust over that land, the subsisting public rights over the land could not be enforced against the Developer.
ii) The LPA failed to take reasonable steps to acquaint itself with the Site's history and legal status, and the legal implications of the sale; and as a result, when granting planning permission, it had failed to take into account material considerations. The grounds of claim had thus been made good to that extent.
iii) However, as we have indicated, applying section 31(2A) of the Senior Courts Act 1981 and given that the rights under the statutory trust, insofar as they subsisted, could not be enforced against the Developer, had the LPA not erred in this way, the judge concluded that it is highly likely that it would in any event have granted planning permission as it did. Relief was therefore refused.
iv) With regard to the Retained Part, the LPA similarly erred in failing to make due enquiry and to take a material matter into consideration, namely that it was still subject to the trust in respect of which the Town Council had both statutory obligations and the power to enforce; but, had the LPA taken that matter into consideration as it should have done, it is highly likely that planning permission would have been granted because there was no proposal to develop that land and the interference with the use of the recreational ground would be de minimis.
Therefore, whilst the grounds of challenge had succeeded, all relief was refused; and the claim was consequently dismissed. Lang J made no order as to costs.
The Statutory Scheme
Given that the relevant trust in this case is entirely a creature of statute, the circumstances in which the rights and obligations attached to the trust arise and come to an end are essentially a matter of statutory construction. Therefore, before considering the issues that arise in this appeal, it would be helpful to outline the relevant statutory provisions applying to such trusts.
A number of statutory provisions give a local authority the power to hold land for the purposes of public recreation. In this case, two are potentially relevant.
First, section 164(1) of the Public Health Act 1875 (“the 1875 Act”) (as amended by paragraph 27 of Schedule 14 Part II to the Local Government Act 1972 (“the 1972 Act”)), provides that:
“Any local authority may purchase or take a lease lay out improve and maintain lands for the purpose of being used as public walks or pleasure grounds, and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever.
Second, sections 9 and 10 of the Open Spaces Act 1906 (“the 1906 Act”) provide, so far as relevant:
“9. A local authority may, subject to the provisions of this Act—
(a) acquire by agreement and for valuable or nominal consideration by way of payment in gross, or of rent, or otherwise, or without any consideration, the freehold of, or any term of years or other limited estate or interest in, or any right or easement in or over, any open space or burial ground, whether situate within the district of the local authority or not; and
(b) undertake the entire or partial care, management, and control of any such open space or burial ground, whether any interest in the soil is transferred to the local authority or not; and
(c) for the purposes aforesaid, make any agreement with any person authorised by this Act or otherwise to convey or to agree with reference to any open space or burial ground, or with any other persons interested therein.
10. A local authority...
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