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Supreme Court hears argument on the future of public rights to open spaces

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The Supreme Court heard an appeal yesterday (7 December 2022) to determine whether public rights to recreation over parks and other open spaces are retained, suspended or extinguished where that land is sold to private developers, and whether such rights are material to planning decisions.

Open Space has come into focus more as a public health issue since COVID-19. In Victorian times, it was well recognised that recreation spaces were intrinsic to the public health challenges of the time. Parliament set about legislating through numerous local and general acts to provide powers to urban corporations and local authorities to provide such spaces.

Victorian and Edwardian legislation provided for public parks, recreation grounds, public walks, pleasure grounds and the like to be held and administered in trust by local authorities with a view to enjoyment of them as open space by the public by right. Parliament has since then jealously guarded what it has called “public trust land”. 175 years of public health acts; local government acts, and town and country planning acts have never granted to local authorities an unconditional power to appropriate or dispose of public trust land: Parliament has always imposed safeguards.

The Public Health Act 1848 set up local boards of health to improve sanitary conditions. Hansard records of parliamentary debate show that the motivation for the Bill was primarily a cholera epidemic. The provision of places for public recreation was seen as part of promoting the public health. Section 74 of the Public Health Act 1848 provided Local Boards of Health with power to provide, maintain, lay out, plant, and improve Premises for the Purpose of being used as public Walks or Pleasure Grounds.

The Public Health Act 1875 was a consolidating and amendment act which sought to address longstanding public health problems in relation to such matters as sewerage; housing, water-supply and the prevention of epidemic disease. Section 164 of the PHA 1875 expanded the preceding power of the PHA 1848 specifically to permit urban authorities to acquire land for “pleasure grounds” and for regulation thereof by byelaws:

“164 Urban authority may provide places of public recreation.

Any urban authority may purchase or take on lease lay out plant improve and maintain lands for the purpose of being used as public walks or pleasure grounds, and may support or contribute to the support of public walks or pleasure grounds provided by any person whomsoever.”

A considerable body of case law has arisen around this provision and its predecessor and since Attorney General v Sunderland Corporation (1876) Ch D. 634 it has been accepted that such public walks and pleasure grounds are held on trust and that a local authority holding them are in the position of a trustee.

The Open Spaces Act 1906 made specific provision for the acquisition and regulation of open spaces, and provided explicitly that such spaces are held “in trust”.

Yesterday, the Supreme Court heard Mr Day’s appeal against the decision in R (Day) v Shropshire Council [2021] Q.B. 1127. The case arises because Shrewsbury Town Council disposed of land that had since 1926 comprised part of the Greenfields Recreation Ground. The Town Council has since been criticised by appointed auditors “serious governance weaknesses” surrounding the sale of the site, and following an independent inquiry, the Town Council has apologised for its errors. However, in the meantime, a developer who bought the land has obtained planning permission for housing. A local man (Dr Day) is seeking to quash that permission in this appeal on the ground that Shropshire Council failed, in granting planning permission, to inquire into the status of the land.

Dr Day argues that the trust and public rights to recreation subsist following disposal either as public rights akin for example to public rights over a highway, or else are suspended and although they may currently be incapable of enforcement, they are capable of reignition or reforming if for example the land should come back into local authority ownership. In either case, he says that the trust and the public rights under it were material to whether to grant planning permission.

The case is the first before the Supreme Court to consider the public health acts, public trust land, and powers of local authorities to dispose of land.

Alex Goodman and Kimberley Ziya act for Mr Day, instructed by Stephanie Hill of Leigh Day.

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