A parish council sold part of a public recreation ground without advertising the sale or considering objections. The Supreme Court held that the public’s statutory right to use the land was not extinguished by a general protection for purchasers, and continued to bind the private buyer. Planning permission for housing, granted without regard to that continuing right, was quashed.
The recreation ground and the sale
Shrewsbury Town Council sold part of the Greenfields Recreation Ground to CSE Development in 2017. The land had been acquired for public recreation in 1926 and was held on a statutory trust. The town council did not appreciate that history when it sold the land.
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A trust of this kind arises where a local authority provides recreation land or open space under the Public Health Act 1875 or the Open Spaces Act 1906. The authority must hold the land so that the public can use it for recreation. It is created by statute. It is not an ordinary private trust with named beneficiaries. Although the 1875 Act does not use the word “trust”, it was common ground, and had previously been held, that it creates the same trust as section 10 of the 1906 Act. By the appeal it was accepted that, before the sale, this land was held on such a trust under one or other of those Acts. Section 127(3) of the Local Government Act 1972 applies the relevant disposal rules to a parish council.
The planning permission
Shortly after the sale, CSE applied for permission to build houses. Shropshire Council’s planning officer described the site as vacant, overgrown land and said that suggestions it was public open space were unsubstantiated and could be given no weight. The planning committee resolved to grant permission, and the council granted it on 8 November 2018.
Dr Day discovered the land’s history in the town archives. He challenged Shropshire Council’s decision to grant planning permission for houses, arguing that the public rights surviving the sale were a material consideration which the planning authority had overlooked.
The disposal rules
Section 123 of the Local Government Act 1972 generally allows a council to dispose of its land. Section 123(2A) makes an exception for open space. Before disposing of it, the council must advertise its intention for two consecutive weeks in a newspaper circulating in the area and consider any objections. Section 123(2B) then says that, where land held for the purposes of section 164 of the 1875 Act or in accordance with section 10 of the 1906 Act is disposed of under that procedure, the disposal frees it from the public trust.
Section 128(2) is a broader protection for people dealing with a local authority. A purported disposal is not invalid merely because a required ministerial consent was not given, or because a requirement to advertise and consider objections was not met. A person dealing with the authority, or claiming under it, need not check whether any such consent was given or requirement met. The issue was whether this general protection removed the public’s rights even though the section 123 procedure had not been followed.
The courts below
Lang J held that the planning officer had failed to make reasonable inquiries about the land’s status. She nevertheless considered any surviving rights unenforceable against the buyer and declined to quash the permission.
The Court of Appeal agreed that the sale had been unlawful because the required procedure had not been followed. The transfer of title was nevertheless valid. In its view the buyer’s lack of notice meant the statutory trust had been extinguished. It therefore upheld the dismissal of Dr Day’s challenge.
Why the public’s rights survived
Lady Rose, with whom Lord Reed, Lord Kitchin, Lord Hamblen and Lord Stephens agreed, rejected both analyses. A simple transfer into private ownership does not end the trust. If it did, there would be little need for section 123(2B), which expressly frees the land only when the statutory procedure has been followed, or for the conditions which have long attached to sales of recreation land. She accepted that the public rights here are, in this respect, analogous to rights over village and town greens and highways, which can continue after land passes into private ownership.
The authorities showed that general powers to deal with local-authority land do not override public recreation rights unless Parliament uses very clear words. Section 123(2B) uses such words, but only where the council has advertised the disposal and considered objections. Section 128(2) does not. It applies widely to dealings under Part VII of the 1972 Act and under other enactments, and it does not mention statutory trusts. Lady Rose said that it had never been treated as making a disposal unimpeachable whatever the defect. To read it as automatically extinguishing the trust would defeat the carefully drawn opportunity for the public to learn of a proposed sale and object.
The continuing public rights were an important consideration for the planning authority. The Court could not say it was highly likely that proper consideration of the trust would have made no substantial difference to the result. It did not decide how the buyer might resolve its position with the town council.
Verdict: The Supreme Court unanimously allowed Dr Day’s appeal and quashed the planning permission. The freehold had been transferred, but the public’s rights under the statutory trust survived. The Court did not set aside the sale or decide the parties’ remedies arising from it.
Source: R (on the application of Day) v Shropshire Council [2023] UKSC 8
