Day,R (on the application of) v Shropshire Council

Factual and Procedural Background

The case concerns a parcel of land forming part of a recreation ground in The City. The land had been acquired in 1926 by a predecessor local authority under powers now found in the Public Health Act 1875 (“PHA 1875”) or the Open Spaces Act 1906 (“OSA 1906”). Both statutes impose a statutory trust requiring the land to be held for public recreational use.

In 2017 the land was sold by the Parish Council to Company A without compliance with the advertising and consultation procedure required by section 123(2A) of the Local Government Act 1972 (“LGA 1972”). Shortly afterwards Company A applied for planning permission to construct housing. The Respondent granted permission in 2018.

The Appellant, a local resident, brought judicial review proceedings alleging that the statutory trust still bound the land and that the Respondent had failed to treat that fact as a material planning consideration. At first instance Judge Lang dismissed the claim; the Court of Appeal also dismissed the appeal, holding that section 128(2)(b) LGA 1972 extinguished the trust on disposal. The present judgment is on a further appeal.

Legal Issues Presented

1. Whether, on a disposal of open-space land held under the PHA 1875 or OSA 1906 without compliance with section 123(2A) LGA 1972, the statutory trust is nevertheless extinguished by section 128(2)(b) LGA 1972.
2. If the trust were extinguished, whether its former existence remained a material consideration that the planning authority was obliged to take into account when granting planning permission.

Arguments of the Parties

Appellant's Arguments

• The statutory trust can be removed only by strict compliance with section 123(2A) – (2B) LGA 1972; failure to advertise leaves the trust in place.
• Section 128(2)(b) protects legal title but does not destroy public rights arising under the trust.
• Alternatively, if rights became dormant on sale, they revive if the land returns to public ownership.
• The Respondent therefore acted unlawfully in ignoring the continuing (or potential) public rights when determining the planning application.

Respondent's Arguments

• Section 128(2)(a)–(b) LGA 1972 means that disposal is valid and frees the land from the statutory trust, unless the purchaser had actual knowledge of non-compliance.
• Accordingly no enforceable public rights remained, so the planning committee was entitled to disregard the alleged trust.
• Even if a procedural error occurred, relief should be refused under section 31(2A) of the Senior Courts Act 1981 because the outcome would have been the same.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Statutory Framework. The Court examined section 123 LGA 1972, which expressly frees land from the statutory trust only when the local authority advertises its intention to dispose and considers objections. Section 128(2) is of wider application and contains no express reference to statutory trusts.

2. Historical Context. Earlier legislation, case-law (Blake v Hendon, Laverstoke, Shonleigh) and amendments in 1980 show that Parliament consistently imposed special safeguards before recreation land could be alienated, and required “very clear words” to extinguish public rights.

3. Limited Function of Section 128(2). The wording protects the validity of the transaction and the purchaser’s legal title, but it is not a ‘universal solvent’ removing all other legal impediments. Decisions such as Structadene demonstrate that the subsection does not cure every defect.

4. Analogy with Other Public Rights. Rights over village greens and highways continue notwithstanding private ownership; the Court saw no reason why statutory-trust rights should be more fragile.

5. Rejection of Respondent’s Construction. If section 128(2)(b) automatically extinguished the trust, the elaborate procedure in section 123(2A)–(2B) would be redundant, contrary to legislative intent. Moreover, interpreting subsection (b) to free land from the trust would leave purchasers in a potentially “positively misleading” position, contrary to the supposed protection offered.

6. Consequence for Planning Decision. Because the statutory trust survived the sale, the Respondent failed to consider a highly material factor when granting planning permission. The “highly likely” test in section 31(2A) SCA 1981 could not be met; the outcome might have been different.

Holding and Implications

ALLOW APPEAL; PLANNING PERMISSION QUASHED.

• The statutory trust created under PHA 1875 or OSA 1906 is not extinguished by a disposal that fails to comply with section 123(2A) LGA 1972, notwithstanding section 128(2)(b).
• The Respondent’s planning decision is vitiated and must be reconsidered.
• Local authorities must audit their landholdings, ensure compliance with consultation requirements, and treat surviving public recreation rights as material considerations. Although the judgment sets no entirely new legal test, it clarifies the limited reach of section 128(2) and signals that purchasers cannot safely assume open-space land is free of public rights absent strict statutory compliance.