Mrs Justice Lang today handed down judgment in R (Day) v Shropshire Council  EWHC 3539 (Admin) allowing grounds 1 and 2 of Mr Day’s application for judicial review of the decision of Shropshire Council to grant planning permission for housing development on Greenfields Recreation Ground in Shrewsbury, Shropshire, declining to quash the permission and granting permission to appeal to the Court of Appeal. The judge agreed with the Claimant that the recreation ground was purchased by the Borough of Shrewsbury in 1925 and held by that council and its successors ever since subject to a “statutory trust” under either section 164 of the Public Health Act 1875 or section 10 of the Open Spaces Act 1906. The judge found that the Town Council sold of the land which was held under statutory trust in breach of the statutory rules prohibiting such a sale without public consultation.
The judge held that in his opposition to the grant of planning permission Mr Day had presented enough evidence to raise a question whether the land was subject to statutory trust and Shropshire Council should, pursuant to its duty of inquiry, have conducted investigations including inspecting the Land Register and inspecting its and the Town Council’s archives as well as making further inquiries into the legal status of the land [55-57]. If it had done so, Shropshire would have uncovered relevant material confirming the status of the land as held under statutory trust by the Town Council for the benefit of residents of the area .
The judge therefore allowed grounds 1 and 2 of the claim, but refused to quash the planning permission on the basis that once the land had been sold by the Town Council, the private purchaser took the land free of the statutory trust as a result of section 128(2) of the Local Government Act 1972, notwithstanding the Council’s failure to follow the procedures required before disposal of open space. However, the judge acknowledged that this finding was a novel one and the effect of sections 128 and 131 of the Local Government Act 1972 raised an issue of importance to many local authorities and she granted the Claimant permission to appeal to the Court of Appeal. The judge directed each party to bear their own costs.
Alex Goodman acted for the Claimant.
The judgment may be viewed here.