R (on the application of Day) v Shropshire Council

The Supreme Court considered whether statutory trusts created by section 164 of the Public Health Act 1875 and section 10 of the Open Spaces Act 1906 continue to bind land after a local authority disposes of it without complying with the advertising and consultation procedure in section 123(2A) and (2B) of the Local Government Act 1972. The court held that those public statutory trusts are not extinguished by section 128(2)(b) LGA 1972; land is freed from the statutory trust only where the bespoke procedure in section 123(2A) and (2B) has been complied with. The court therefore concluded that the planning authority’s failure to identify and consider the continuing existence of the statutory trust was a material error and quashed the grant of planning permission.

Background and parties: The disputed land formed part of Greenfields Recreation Ground in Shrewsbury. Shrewsbury Town Council sold the land to a private developer (CSE) in October 2017 without realising it was held subject to a statutory trust for public recreation under either s.164 PHA 1875 or s.10 OSA 1906. CSE obtained planning permission from Shropshire Council in November 2018. Dr Day, a local resident, brought judicial review proceedings challenging the grant of planning permission.

Procedural history: Lang J dismissed the claim at first instance ([2019] EWHC 3539 (Admin)). The Court of Appeal dismissed an appeal ([2020] EWCA Civ 1751) on different reasoning, holding the statutory trust was extinguished on sale except where the buyer had actual knowledge. The case came to the Supreme Court by permission.

Nature of the claim and relief sought: Dr Day sought judicial review of the planning permission, alleging (i) that the land remained subject to a statutory trust because the vendor had not complied with s.123(2A) LGA 1972 and (ii) that the existence of that trust was a material consideration under s.70(2)(c) TCPA 1990 which the planning authority failed to take into account.

Issues for decision: (i) Whether the statutory trusts created by s.164 PHA 1875 and s.10 OSA 1906 survive transfer to a private purchaser when the seller did not comply with the s.123(2A) advertising/consultation procedure; (ii) whether section 128(2)(b) LGA 1972 operates to free the purchaser from those trusts absent actual knowledge; and (iii) whether the prior existence of the trust was a material consideration in the planning decision.

Reasoning: The court engaged in statutory construction and considered the historical development of the local authority land disposal regime and relevant authorities (including Blake v Hendon, Laverstoke, Shonleigh and cases on highways and town greens). It concluded that the statutory trusts are public, sui generis trusts that have historically been treated as distinct from ordinary private trusts and that Parliament has enacted clear, bespoke provisions (s.123(2A)/(2B)) specifying when such trusts may be displaced. Section 128(2)(b) is a purchaser-protection provision but was not intended to and does not operate to extinguish statutory public recreation trusts; the land is freed from the trust only where the section 123 procedure has been followed. On that basis the Supreme Court held that the planning authority’s failure to identify and consider the trust was material and that relief should be granted.

Practical observations: The judgment noted the difficult consequences for an innocent purchaser and vendors but emphasised the importance of the statutory scheme and recommended that local authorities review their records and governance to avoid similar failures.

Appeal allowed. The Supreme Court held that statutory trusts under s.164 Public Health Act 1875 and s.10 Open Spaces Act 1906 are not extinguished by section 128(2)(b) Local Government Act 1972 where the seller failed to comply with the advertising and objection procedure in s.123(2A)/(2B). Because the statutory trust would have been an important material consideration under s.70(2)(c) Town and Country Planning Act 1990, the failure to identify and consider it vitiated the planning decision and the grant of planning permission was quashed.

First instance: Lang J, R (Day) v Shropshire Council [2019] EWHC 3539 (Admin) (application for judicial review dismissed). Court of Appeal: appeal dismissed, [2020] EWCA Civ 1751, [2021] QB 1127. Supreme Court: appeal allowed, [2023] UKSC 8.