SUPREME COURT - Protecting Public Open Spaces - Statutory Trust
Gerald Moran reports that the UK Supreme Court has today ruled in favour of a challenge regarding land which had for years been part of a Public Recreation Ground at Shrewsbury and which the Town Council had sold off in 2017 for intended development. A revised planning application for 15 new dwellings was approved by Shropshire Council in 2018, despite objections from local residents. Dr Day, a local resident, had not known of the sale but was aware of the planning application. He investigated and found that the Town Council had held the land upon Statutory Trust for the public, either under section 164 of the Public Health Act 1875 or section 10 of the Open Spaces Act 1906, but had sold the land without having followed the Local Government Act 1972 prescribed procedure for removing the land from the Statutory Trust. This procedure involves giving some publicity to that proposal and allowing the public to make objections before the Council resolves that the land is no longer required for the purpose, which incidentally happens to be of financial benefit to the Council in facilitating development and/or sale of the land.Dr Day brought judicial review proceedings to challenge the planning permission on the basis that Shropshire Council ought to have taken into account the material consideration that this had been part of the recreation ground held by the Town Council upon public trust for that use and that there had been failure to follow the prescribed procedure for removing the land from the public trust. The High Court judge was inclined to agree but did not exercise discretion to quash the planning permission, supposing that Shropshire Council would anyway still grant planning permission even taking account of the position. The Court of Appeal (incorrectly) considered that the sale meant that the land was no longer subject to the public trust as it was not for the buyer to be concerned about what procedure the town council ought to have followed regarding the sale.The Supreme Court agreed with Dr Day both on the underlying legal question and that the planning permission should be QUASHED as the material consideration had not been taken into consideration. The statutory provision for protection of the buyer did not extend to removing the land from the Public Trust where the prescribed procedure had not been followed.Lady Rose, towards the end of the decision for the Supreme Court, referred to the advice from auditors that the Town Council should put robust procedures in place to ensure that an oversight such as had occurred here is not permitted to recur. On any future sale of its land the council must be able to demonstrate that it has taken sufficient steps to establish the legal status of the land and act in accordance with all relevant legislation prior to sale. It should consider whether it has the power to proceed with any future disposals and, for the sake of good governance, should formally document the powers on which it has relied when making such decisions. Lady Rose considered that it would be all to the good if, as a result of this appeal, other local authorities/parish councils would decide to follow that advice and take stock of how they acquired and now hold the pleasure grounds., public walks and open spaces that they make available to the public to enjoy.Landmark Chambers presentation of issues on their website mentions that local residents had struggled to finance the legal challenge, for instance with sponsored walks and drag nights. It sounds as if there may be a possibility that the Town Council might repurchase the land for public use, although councils rarely have as much money as they would like.1st March 2023.
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