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Statutory trust issues and a failure to advertise

08 August 2023
Failure to advertise the disposal of open space could lead to extinguishment of planning permission, even after acquisition disposal by a local authority.

The case of R (on the application of Day) v Shropshire Council [2023] UKSC 8 highlights the importance of thorough due diligence when a Local Authority is disposing of open space land.

Where rights exist over the subject land a Local Authority may have obligations to fulfil in order to ensure that any such rights are extinguished and do not continue to bind the land following completion of the sale. 

The land was subject to a statutory trust in favour of the public. First held by the Local Authority for recreational purposes under s10 Open Spaces Act 1906, it had not been used as public open space since World War II. As such neither the Local Authority as seller, nor the developer as purchaser were aware that the land was subject to the statutory trust.

In order for a Local Authority to dispose of land subject to a statutory trust and for the purchaser to take free of it, the Local Authority must follow the procedure set out in s123 (2A)  Local Government Act 1972. This requires the Local Authority to advertise its intention to dispose of the land in a local newspaper for two consecutive weeks. This allows the public an opportunity to raise concerns which the Local Authority is then obliged to consider.

As neither party was aware of the statutory trust the land was sold without the procedure having been followed. The developer then submitted an application for planning permission to build 15 homes which was granted on a conditional basis by Shropshire Council.

A challenge to the planning permission raised via Judicial Review was rejected by the High Court but then achieved unanimous success on appeal in the Supreme Court.

Shropshire Council sought to rely on s128(2)(a) and (b) of the Local Government Act 1972 to argue that the public rights had been extinguished or at least did not survive a sale in a form that should merit material consideration when deciding whether to grant planning permission.

The Supreme Court held that s128(2) does not extinguish rights enjoyed by the public, such rights can only be extinguished if a Local Authority complies with the requirements of s123 of the Local Government Act 1972.

Further, it was held that as the continued existence of the statutory trust over land is an important factor to consider when granting planning permission, the planning permission was also quashed.

Given the importance of statutory public trust status specific enquiries should be considered to establish whether or not any qualifying rights exist when purchasing land from a Local Authority.

If there is any doubt about any historic use as public open space and/or the existence of any statutory trust, the Local Authority should consider going through the process in s123 (2A) Local Government Act 1972 to put the matter beyond doubt. This gives the public the opportunity to object and for the local planning authority to consider those objections when considering the planning application.

If you are considering disposing of local authority land and would like specific advice contact Michelle Knight.

We would like to thank the author Stacey Brook for this article. 

Further Reading