Day, R (On the Application Of) v Shropshire Council

A statutory public-recreation trust attached to land owned by a local authority does not continue after an unauthorised disposal where the purchaser lacked actual knowledge that the statutory advertising and objection requirements were not met. Under sections 123 and 128 of the Local Government Act 1972, the purchaser obtains valid title free from the trust. A purchaser with actual knowledge may take title subject to the trust, although the means of enforcing it was left open. The planning authority was therefore not required to treat the extinguished recreational rights as a material consideration. Any continuing trust over retained land was immaterial where the interference with public recreation was de minimis. Both the appeal and the cross-appeal were dismissed.

A local resident challenged the grant of conditional planning permission for 15 dwellings on land formerly held by Shrewsbury Town Council under a statutory trust for public recreation. The land was sold to the developer without the notices and consideration of objections required by section 123(2A) of the Local Government Act 1972. The developer lacked actual knowledge of that failure.

The High Court held that the local planning authority had failed to investigate the site’s history and legal status and had thereby failed to consider material matters. Applying section 31(2A) of the Senior Courts Act 1981, however, it refused relief because the planning permission would probably have been granted in any event. The appeal concerned the statutory trust, the planning consequences, the retained land and costs.

1. Appeal dismissed. The cross-appeal on costs was also dismissed.
2. The public-recreation trust was a statutory construct. Its obligations attached to a local authority’s ownership or control of the land. Section 123(2B) of the Local Government Act 1972 freed land from the trust where the statutory advertising and objection requirements had been met. Where those requirements had not been met, section 128(2)(a) nevertheless protected the validity of the purchaser’s title, while section 128(2)(b) protected a purchaser without actual knowledge from constructive notice of the non-compliance.
3. Accordingly, a purchaser who lacked actual knowledge took the land free from the statutory trust. The court further indicated, as an observation concerning a situation not arising for decision, that a purchaser with actual knowledge would take valid title subject to the trust. The means of enforcing the trust in that situation was left open.
4. The trust over the development site therefore did not subsist. The local planning authority had no obligation to treat the associated recreational rights as a material planning consideration. The argument that the land remained relevant as open space failed because the statutory definitions and the National Planning Policy Framework concept were distinct; in any event, the planning officer’s report addressed visual amenity.
5. The retained part remained subject to the trust, but it was used only as part of a car park and was not to be developed. The additional vehicle movements were assessed as insignificant. Any interference with recreational rights was de minimis, so the error was immaterial and section 31(2A) of the Senior Courts Act 1981 applied.
6. The High Court had a broad costs discretion. It was entitled to order no order as to costs because the appellant had succeeded on the heavily contested issues, despite ultimately obtaining no relief. The question of costs after the appeal was left for agreement or written submissions.

• Court of Appeal (Civil Division) — Appeal from the High Court Planning Court decision reported at [2019] EWHC 3539 (Admin). The appeal and the respondent’s cross-appeal were dismissed.