R Peter Day v Shropshire Council
| Jurisdiction | England & Wales |
| Judge | Lady Rose,Lord Reed,Lord Kitchin,Lord Hamblen,Lord Stephens |
| Judgment Date | 01 March 2023 |
| Neutral Citation | [2023] UKSC 8 |
| Court | Supreme Court |
[2023] UKSC 8
Lord Reed, President
Lord Kitchin
Lord Hamblen
Lord Stephens
Lady Rose
Appellant
Alex Goodman
Kimberley Ziya
(Instructed by Leigh Day)
Respondent
Killian Garvey
(Instructed by Shropshire Council Legal Services)
Heard on 7 December 2022
Lady Rose ( with whom Lord Reed, Lord Kitchin, Lord Hamblen and Lord Stephens agree):
For many years Parliament has recognised the importance for local communities of having green spaces where people can take exercise, play sport and meet each other in the outdoors. Certainly, the events of recent years blighted by the Covid-19 pandemic with compulsory lock downs and social distancing have confirmed that recreation areas have a vital role to play in the physical and mental well-being of people living in an urban environment. The National Planning Policy Framework published by the Ministry of Housing, Communities & Local Government in July 2021 states at para 98:
“Access to a network of high quality open spaces and opportunities for sport and physical activity is important for the health and well-being of communities, and can deliver wider benefits for nature and support efforts to address climate change. Planning policies should be based on robust and up-to-date assessments of the need for open space, sport and recreation facilities (including quantitative or qualitative deficits or surpluses) and opportunities for new provision. Information gained from the assessments should be used to determine what open space, sport and recreational provision is needed, which plans should then seek to accommodate.”
Legislation has conferred powers on local councils to acquire and lay out recreation grounds and provide them to residents. Where a local authority uses the powers conferred by the Public Health Act 1875 (“the PHA 1875”) or the Open Spaces Act 1906 (“the OSA 1906”) to acquire and provide recreation land or open space to the public, the land is subject to a statutory trust in favour of the public and members of the public have a right to go onto the land for the purpose of recreation.
The powers of local authorities to dispose of land in their possession, particularly land used for recreation, have been subject to conditions and limits over many years. The procedure which is relevant for the purpose of this appeal is that currently set out in section 123(2A) and (2B) of the Local Government Act 1972 (“the LGA 1972”) (inserted into that Act in 1980). Those subsections provide that before disposing of land which is subject to a statutory trust under either the PHA 1875 or the OSA 1906, the council must advertise their intention to do so in the local newspaper for two consecutive weeks. They must then consider any objections to the proposed disposal that may be made to them. If the council disposes of land having complied with that procedure then, according to section 123(2B) of the LGA 1972, the land is freed from any public trust.
The question raised by this appeal is what happens to the public's rights to use the land when the local authority disposes of land which is subject to a statutory trust but where it fails to comply with the consultation requirements laid down by section 123(2A) and (2B).
The issue arises in the context of a challenge to the grant of planning permission by the Respondent, Shropshire Council, to a private company CSE Development (Shropshire) Limited (“CSE”) in respect of land within Shropshire Council's remit. The land forms part of the Greenfields Recreation Ground in Shrewsbury. In October 2017, CSE bought the land from Shrewsbury Town Council (“Shrewsbury TC”) which is a parish council for the purposes of the relevant statutory provisions. Section 127(3) LGA 1972 provides that section 123(2A) and (2B) apply to disposals of land by parish councils as they apply to disposals of land under section 123 itself. At the time of the sale, Shrewsbury TC did not realise that the land it was selling was subject to a statutory trust for the benefit of the public and did not therefore comply with the necessary procedure under section 123(2A) as applied to it by section 127(3) LGA 1972. Shortly after buying the land, CSE applied for planning permission to build houses on it and Shropshire Council granted that planning permission in November 2018.
The Appellant, Dr Day, is a local resident who opposes the development. He and a number of other residents have formed the Greenfields Community Group. Dr Day did not know about the disposal of the land by Shrewsbury TC to CSE but he did know of the application for planning permission. He investigated the long history of the recreation ground using the Shrewsbury town archives and this, he thought, established that the land was subject to a statutory trust for the benefit of the public under either the PHA 1875 or the OSA 1906. Dr Day brought judicial review proceedings challenging the grant to CSE of planning permission. He asserts in these proceedings that the statutory trust created by the PHA 1875 or the OSA 1906 continues to adhere to the land in the hands of CSE. If that is right, then, he submits, the grant of planning permission must be quashed on the ground, amongst others, that the existence of the trust was a material factor to which Shropshire Council should have, but failed to have, regard within the meaning of section 70(2)(c) of the Town and Country Planning Act 1990 when considering whether to grant permission for CSE's proposed development.
Shropshire Council now accepts that before the sale by Shrewsbury TC to CSE the land was subject to a statutory trust under either the PHA 1875 or the OSA 1906. But it argues 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. Shropshire Council relies in particular on section 128(2) of the LGA 1972 which provides, in section 128(2)(a), that a disposal of land which was subject to an advertising requirement “shall not be invalid by reason that” the requirement has not been complied with and, further in section 128(2)(b), that the purchaser of the land “shall not be concerned to see or enquire” whether any such requirement has been complied with.
Shropshire Council says that the effect of section 128(2) LGA 1972 is that upon the sale of the land to CSE, the statutory trust was extinguished — or at least that the rights of the public to access the land did not survive in a form that gave rise to a material consideration that the planning committee needed to take into account when deciding whether to grant planning permission.
Lang J at first instance dismissed Dr Day's application for judicial review. She held that even if the public's rights under the statutory trust had survived the sale of the land by Shrewsbury TC to CSE, those rights were now unenforceable as against the developer so that it was not appropriate to grant Dr Day any relief. The Court of Appeal dismissed Dr Day's appeal though their reasoning differed from that of Lang J. They held that the statutory trust was extinguished on the sale of the land. Dr Day now appeals with the permission of this court.
The disputed land lies in Shrewsbury, the county town of Shropshire. During the 19th century, Shrewsbury Borough Council became a municipal corporation. In March 1926, land was bought by the Mayor, Aldermen and Burgesses of the Borough of Shrewsbury. This followed a petition presented by local residents in the Greenfields district of Shrewsbury, asking for the provision of playing fields because of the danger to children from fast moving traffic. In later council documents the land was referred to as part of “Greenfields Recreation Ground” or as “public recreation ground”. In 1942 a small portion of the recreation ground was allocated to allotments as part of the “Dig for Victory” project but later the allotments fell into disuse and the land was used by the council instead as a tree nursery. The tree nursery ceased operations probably at some point in the late 1990s or 2000, the fencing was not maintained and the public was able to gain access.
In 2010 the land which had been purchased in 1926 was transferred into the ownership of Shrewsbury TC as part of a local government reorganisation. The land had been registered at the Land Registry in 2005 as “Land at Greenfields” and this transfer was registered referring to the “Greenfields Recreation Ground and Allotments”. On 23 March 2016, Shropshire Council granted outline planning permission to Shrewsbury TC for an area slightly smaller than the area currently in dispute but essentially covering the same land. The development did not take place. The disputed land was sold by Shrewsbury TC to CSE on 4 October 2017 and CSE was also granted a right of access over a small neighbouring area which was retained by Shrewsbury TC.
On 27 October 2017, CSE applied for planning permission for 17 dwellings. An Officer's Report was commissioned by Shropshire Council to consider the proposal. The proposal was referred to as the erection of 15 dwellings including two affordable homes, a new access road and associated parking. The site address was stated to be “Land off Greenfields Recreation Ground, Falstaff Street, Shrewsbury Shropshire”.
The Report was placed before the Central Planning Committee of the Shropshire Council at their meeting on 30 August 2018. The Report described the land in the following terms:
“2.1 The site is an overgrown vacant piece of land to the west of Greenfields recreation land and was previously owned by Shrewsbury Town Council. The trees that...
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