Day, R (On the Application Of) v Shrewsbury Town Counci & Anor

A planning authority must ask the right questions, take reasonable steps to obtain relevant information, and consider material planning considerations. Where evidence suggests that development land formed part of a recreation ground held under a statutory trust, the authority must investigate the land’s history, statutory basis and any subsequent appropriation or disposal.

Failure to investigate may make the decision unlawful. However, relief may still be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the outcome would not have been substantially different. Under the Local Government Act 1972, statutory recreational trusts may be unenforceable against a purchaser where land has been disposed of without the required advertisement and consideration of objections.

The claimant sought judicial review of Shropshire Council’s decision to grant planning permission for 15 dwellings and an access road on land formerly owned by Shrewsbury Town Council. He argued that the land formed part of Greenfields Recreation Ground and was held for public recreational use under statutory trusts arising under the Public Health Act 1875 and/or the Open Spaces Act 1906.

The claimant contended that the planning authority failed to investigate the site’s history, failed to consider the statutory trust and relevant planning policy, and gave inadequate reasons. The site had been sold to the developer in 2017 without compliance with the statutory notice and objection procedures. The central issues were whether the authority’s inquiry and assessment were legally adequate, whether the site was subject to a statutory trust, and whether any error justified relief.

1. Grounds 1 and 2 succeeded. The planning authority failed to take reasonable steps to establish the extent and legal status of the original Greenfields Recreation Ground. The conveyance plan, Land Registry material and later survey plan provided compelling evidence that the site formed part of the Barker Land and the recreation ground. The authority should have undertaken further archival and Land Registry investigations and obtained legal advice.
2. The possibility that the site had been acquired and held for public recreation was plainly material. The authority should also have considered whether later uses as wartime allotments and a tree nursery amounted to lawful appropriation. Informal management or use could not itself establish a valid appropriation where the statutory procedures had not been followed.
3. The evidence strongly indicated that the recreation ground had been acquired under powers in sections 164 and 233 of the Public Health Act 1875 and/or section 9 of the Open Spaces Act 1906. Those provisions could give rise to a statutory trust for public enjoyment, notwithstanding that the relevant statutes did not always use the word trust.
4. The Town Council’s disposal was valid as against the purchaser under section 128(2) of the Local Government Act 1972, despite failure to comply with section 123(2A). Sections 128(2) and 131(1), read together with section 123(2B), meant that any subsisting public rights under the statutory trust could not be enforced against the purchaser. The purchaser was protected from having to investigate compliance with the statutory requirements.
5. The retained car-park land was unlikely to produce a different result because the access easement caused only de minimis interference with recreational use.
6. Ground 3 failed. Since the committee followed the officer’s recommendation, it was ordinarily sufficient to rely on the report’s reasoning. The report would have met the required standard of reasons had it not proceeded on the erroneous approach to the site’s status.
7. Although the decision was unlawful, relief was refused under section 31(2A) of the Senior Courts Act 1981. It was highly likely that the outcome would not have been substantially different because the statutory trust could not be enforced against the purchaser.