In R (Day) v Shropshire [2023] UKSC 8, the Supreme Court considered whether a statutory trust created in 1926 gave residents rights of recreation over a piece of land after Shrewsbury Town Council (STC) had sold it to a developer. The land was originally held by STC  subject to a statutory trust for recreational purposes under s.10 of the Open Spaces Act 1906. STC sold the land to a developer without being aware of the trust's existence and failed to comply with s.123(2A) of the Local Government Act 1972. This requires an authority to advertise the intention to dispose of land subject to a statutory trust  and to consider any objections prior to the disposal. Shropshire Council then granted planning permission for the developer to build houses on the land. 

The Supreme Court held that: 

• section 128(2)(b) of the Local Government Act 1972 is not designed to free land from public trusts when that land is sold and should not be read as having accidentally done so; and
• the public recreation rights over the recreation ground were material considerations that needed to be taken into account in the determination of a planning application for a housing scheme.

As Shropshire Council had not taken the rights into account, the planning permission was  quashed. 

This is an important judgment to bear in mind when advising on the development of land which was formerly local authority land and includes open space as the necessary due diligence should be carried out to establish the status of the land. 

We will be looking at this judgment in more detail during our upcoming webinar on development constraints on 21 March 2023, forming part of our Planning and Compulsory Purchase Webinar Series 2023 (burges-salmon.com). In the meantime, if you have any queries, please contact my colleague Cathryn Tracey (burges-salmon.com).