R (on the application of Day) v Shropshire Council

Public rights arising from a statutory trust over recreation land survive a transfer into private ownership. Under sections 123(2A) and 123(2B) of the Local Government Act 1972, those rights are extinguished only when the local authority advertises its proposed disposal and considers any objections.

Section 128(2) protects the validity of a completed disposal despite non-compliance and relieves a purchaser from making inquiries. It does not free the land from the statutory trust. The trust’s continued existence is an important material consideration when determining an application for planning permission affecting the land.

Shrewsbury Town Council sold part of Greenfields Recreation Ground to a private developer without realising that the land was held on statutory trust for public recreation. It consequently failed to advertise the proposed disposal or consider objections under section 123(2A) of the Local Government Act 1972. Shropshire Council later granted planning permission for housing without recognising the trust.

Lang J dismissed the resident’s judicial review claim, holding that any surviving public rights were unenforceable against the purchaser: [2019] EWHC 3539 (Admin). The Court of Appeal dismissed his appeal, holding that the trust was extinguished unless the purchaser had actual knowledge of the non-compliance: [2020] EWCA Civ 1751; [2021] QB 1127.

The central question was whether section 128(2) of the 1972 Act extinguished the public’s rights despite the failure to follow the bespoke statutory procedure.

1. Appeal allowed unanimously; planning permission quashed. Lady Rose gave the judgment, with which Lord Reed, Lord Kitchin, Lord Hamblen and Lord Stephens agreed.

2. A statutory trust arising under section 164 of the Public Health Act 1875 or section 10 of the Open Spaces Act 1906 gives members of the public rights to use the land for recreation. Those rights are not extinguished merely because the local authority transfers the land into private ownership. Comparable public rights over highways and town or village greens can coexist with private ownership. Treating every private transfer as extinguishing the trust would also circumvent the statutory restrictions on disposing of recreation land.

3. The history and structure of the legislation showed that general powers to deal with local-authority land have consistently been construed as subordinate to the statutory purpose for which particular land is held. Parliament used clear and specific language in sections 123(2A) and 123(2B) of the Local Government Act 1972. Land subject to the relevant statutory trust is freed from that trust only where the authority advertises the intended disposal for two consecutive weeks and considers objections.

4. Section 128(2) has a different and more general function. Paragraph (a) protects the validity of the acquisition, appropriation or disposal despite specified procedural failures. Paragraph (b) relieves a person dealing with the authority from seeing or inquiring whether the requirements were met. Neither provision extinguishes public rights or treats the statutory conditions as satisfied. Construing section 128(2) as a means of freeing the land from the trust would defeat the carefully designed opportunity for public notice and objection.

5. The statutory trust therefore remained enforceable against the purchaser. Its continued existence was plainly an important consideration when Shropshire Council determined the planning application. Because it was impossible to say that the outcome would highly likely have been substantially the same absent the error, section 31(2A) of the Senior Courts Act 1981 did not justify refusing relief.

1. United Kingdom Supreme Court: The appeal was allowed unanimously and the grant of planning permission was quashed: [2023] UKSC 8.
2. Court of Appeal: The resident’s appeal was dismissed on the basis that the statutory trust had been extinguished because the purchaser lacked actual knowledge of the procedural non-compliance: [2020] EWCA Civ 1751; [2021] QB 1127.
3. High Court, Administrative Court: Lang J found public-law errors but refused relief because any surviving rights were unenforceable against the purchaser and the planning outcome was highly likely to have been unchanged: [2019] EWHC 3539 (Admin).