On this publish, Mathew Buy KC of Matrix Chambers previews the forthcoming judgment within the case of R (Day) v Shropshire Council, on attraction from [2020] EWCA Civ 1751.
background
Shrewsbury City Council owned a plot of land which was topic to a statutory belief arising both below part 10 of the Open Areas Act 1906 or, impliedly, below the Public Well being Act 1875. Pursuant to that belief, the city council needed to permit the general public to benefit from the land as an open area.
Below the Native Authorities Act 1972 (‘the 1972 Act’), the city council was permitted to get rid of the land provided that sure circumstances had been met. These included a requirement to promote their intention to promote the land and to contemplate any objections. Part 123 of the 1972 Act expressly offered that, if these circumstances had been met, the land would now not be topic to the statutory belief upon disposal.
In 2017, the city council bought the land to a developer. Neither the city council nor the developer realized that the land was topic to the statutory belief and the city council didn’t adjust to the statutory necessities for disposal.
The defendant council – a special physique from the city council – afterward granted planning permission to permit the developer to assemble residential houses on the location. An area man, Dr Day, challenged that call in a declare for judicial assessment.
There was no dispute that, below the statutory scheme, the sale of the land to the developer had been efficient however the failure to adjust to the necessities. The central problem was whether or not the statutory belief however remained in drive such that, in granting planning permission, the defendant council had did not consider a cloth consideration.
The judgments beneath
Lang J didn’t resolve whether or not or not the statutory belief had been discharged or remained in drive. She was happy that any subsisting public rights below such a belief couldn’t be enforced towards the developer in such a manner that, despite the fact that the defendant council ought to have taken the authorized place under consideration, its resolution would have been the identical.
In a single judgment of the Court docket, the Court docket of Attraction (David Richards, Hickinbottom and Andrews LJJ) held that the land restrict been free of the statutory belief upon disposal.
The Court docket had a lot of causes for that call. Nonetheless, the important thing motive was that part 128(2) of the 1972 Act offered not solely {that a} disposal of land effected with out compliance with the statutory necessities ‘shall not be made invalid’ for that motive, but additionally that the purchaser ‘shall not be involved to see or inquire whether or not… any such requirement has been complied with’.
The Court docket took the view that, since part 128 already offered {that a} failure to adjust to the statutory necessities wouldn’t in itself invalidate the sale, this categorical exclusion of the chance that the purchaser might be fastened with a ‘constructive discover’ of an area authority’s failure to adjust to these necessities needed to have some separate impact. The Court docket thought-about that the statutory intention was that the purchaser can be free of the constraints of the statutory belief except he really knew that the necessities had not been met. That was so not withstanding the truth that Parliament had made categorical provision for the belief to be discharged (solely) if the statutory necessities had been met and the truth that the sale would have taken place with out members of the general public being able to train its statutory proper have their say over the potential lack of rights to open area.
Accordingly, there was no query of the defendant council having did not consider a cloth consideration and no different foundation on which to intervene with then grant of planning permission. Accordingly, though for various causes, the Court docket of Attraction dismissed the attraction towards the choice of Lang J. The judgment was reported at [2020] EWCA Civ 1751 [2021] QB 1127.
The attraction
The problems earlier than the Supreme Court docket are:
(1) When an area authority sells land which is topic to a statutory belief for public leisure functions with out complying with the related statutory necessities, does that belief proceed or finish? In both case, what are the authorized implications for the authority and the customer?
(2) Are the existence of any (former) statutory belief and public recreation rights materials issues that should be taken under consideration in granting planning permission?
The attraction was heard on 07/12/22 by Lords Reed, Kitchen, Hamblen and Stephens and Girl Rose. Judgment is awaited.
