In this post, Mathew Purchase KC of Matrix Chambers previews the forthcoming judgment in the case of R (Day) v Shropshire Council, on appeal from  EWCA Civ 1751.
Shrewsbury Town Council owned a plot of land which was subject to a statutory trust arising either under section 10 of the Open Spaces Act 1906 or, impliedly, under the Public Health Act 1875. Pursuant to that trust, the town council had to allow the public to enjoy the land as an open space.
Under the Local Government Act 1972 (‘the 1972 Act’), the town council was permitted to dispose of the land only if certain conditions were met. These included a requirement to advertise their intention to sell the land and to consider any objections. Section 123 of the 1972 Act expressly provided that, if those conditions were met, the land would no longer be subject to the statutory trust upon disposal.
In 2017, the town council sold the land to a developer. Neither the town council nor the developer realized that the land was subject to the statutory trust and the town council did not comply with the statutory requirements for disposal.
The defendant council – a different body from the town council – afterward granted planning permission to allow the developer to construct residential homes on the site. A local man, Dr Day, challenged that decision in a claim for judicial review.
There was no dispute that, under the statutory scheme, the sale of the land to the developer had been effective notwithstanding the failure to comply with the requirements. The central issue was whether the statutory trust nevertheless remained in force such that, in granting planning permission, the defendant council had failed to take into account a material consideration.
The judgments below
Lang J did not decide whether or not the statutory trust had been discharged or remained in force. She was satisfied that any subsisting public rights under such a trust could not be enforced against the developer in such a way that, even though the defendant council should have taken the legal position into account, its decision would have been the same.
In a single judgment of the Court, the Court of Appeal (David Richards, Hickinbottom and Andrews LJJ) held that the land limit been freed from the statutory trust upon disposal.
The Court had a number of reasons for that decision. However, the key reason was that section 128(2) of the 1972 Act provided not only that a disposal of land effected without compliance with the statutory requirements ‘shall not be made invalid’ for that reason, but also that the purchaser ‘shall not be concerned to see or inquire whether… any such requirement has been complied with’.
The Court took the view that, since section 128 already provided that a failure to comply with the statutory requirements would not in itself invalidate the sale, this express exclusion of the possibility that the purchaser could be fixed with a ‘constructive notice’ of a local authority’s failure to comply with those requirements had to have some separate effect. The Court considered that the statutory intention was that the purchaser would be freed from the constraints of the statutory trust unless he actually knew that the requirements had not been met. That was so not withstanding the fact that Parliament had made express provision for the trust to be discharged (only) if the statutory requirements were met and the fact that the sale would have taken place without members of the public being in a position to exercise its statutory right have their say over the possible loss of rights to open space.
Accordingly, there was no question of the defendant council having failed to take into account a material consideration and no other basis on which to interfere with then grant of planning permission. Accordingly, although for different reasons, the Court of Appeal dismissed the appeal against the decision of Lang J. The judgment was reported at  EWCA Civ 1751  QB 1127.
The issues before the Supreme Court are:
(1) When a local authority sells land which is subject to a statutory trust for public recreational purposes without complying with the relevant statutory requirements, does that trust continue or end? In either case, what are the legal implications for the authority and the buyer?
(2) Are the existence of any (former) statutory trust and public recreation rights material considerations that need to be taken into account in granting planning permission?
The appeal was heard on 07/12/22 by Lords Reed, Kitchen, Hamblen and Stephens and Lady Rose. Judgment is awaited.