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Judge refuses relief despite finding council failed to acquaint itself with legal status of land prior to granting permission for development

Shropshire Council failed to take reasonable steps to acquaint itself with the history and legal status of land off a recreation ground when it granted planning permission for a development of 15 dwellings, a High Court judge has ruled.

In Day, R (On the Application Of) v Shrewsbury Town Council & Anor [2019] EWHC 3539 (Admin) Mrs Justice Lang found that Shropshire had also failed to take into account material considerations.

The site in question was land off Greenfields Recreation Ground, Falstaff Street, Shrewsbury. Previously Shrewsbury Town Council owned the entire site. However, it disposed of it to the developer, CSE Developments (Shropshire), on 4 October 2017, bar a small portion which is part of the car park for the recreation ground. The town council subsequently granted CSE an easement across it, to provide a right of way from Falstaff Street.

The claimant was a local resident who was part of the Greenfields Community Group, which objects to the proposed development. The group considers the site to be part of the recreation ground, held as open space for public use under a statutory trust.

The claimant’s grounds for judicial review were that, in considering the application for planning permission Shropshire Council adopted and acted upon the flawed advice in the officer’s report that the site was not part of Greenfields Recreation Ground, and was not held under a statutory trust for local residents pursuant to the Open Spaces Act 1906 or the Public Health Act 1875, and thereby acted unlawfully by failing to:

i) Ask itself the right questions to establish the site's history and status, in particular, whether the land was open space and subject to a statutory trust, and failing to take reasonable steps to acquaint itself with the relevant information to enable it to answer those questions correctly; and/or

ii) Take account of material considerations, including the existence of the statutory trust, and national and local planning policy on open spaces (paragraph 97 of the National Planning Policy Framework and Core Strategy CS 6), which Shropshire Council failed properly to interpret and apply;

iii) Give adequate or intelligible reasons for its conclusions.

Mrs Justice Lang concluded that grounds 1 and 2, but not 3, had been made out.

The judge said that if the planning officer had undertaken a proper inquiry and obtained the plans and other documents, the compelling evidence that the site was part of the Barker Land [land sold by the owner of the estate, John Barker, in the 1920s] and the original Greenfields Recreation Ground would have triggered an obligation to inquire further into the legal status of the site, and the effects of its later use as allotments, as a tree nursery, and then sale to CSE.

“None of these issues were adequately addressed in the OR [officer's report],” she said. “They were plainly material considerations which should have been taken into account. In my view, the planning officer and the Committee should have sought more detailed legal advice on the legal status of the Site from its Legal Services department before making its decision.”

She said that in the light of the authorities and the relevant statutory provisions, she considered that, if Shropshire Council had addressed its mind to the legal status of the recreation ground, “it would have been likely to conclude that the Recreation Ground was purchased and established pursuant to powers in the PHA 1875 or the OSA 1906, and it was held by the Borough Council (and then the Town Council) on a statutory trust for the benefit of the residents of the area”.

But she added that if Shropshire had properly considered the legal status of the site following disposal to the developer CSE, it would have concluded that the rights under the statutory trust, insofar as they subsisted, could not be enforced against the current owner by virtue of subsections 128(2) and 131(1) of the Local Government Act 1972.

This was despite the fact that it was not in dispute that the town council did not comply with the requirements in subsection 123(2A) LGA 1972 to advertise its intention to dispose of the site and to consider any objections to the proposed disposal.

The judge noted that subsection 128(2)(a) LGA 1972 upheld “in clear terms” the validity of any disposal, despite a local authority's failure to comply with the prior notice and consideration of objections requirements in 123(2A) LGA 1972.

Mrs Justice Lang said she recognised that her interpretation would “have the unfortunate effect of depriving local residents of the enjoyment of part of the Recreation Ground which was very probably held in trust for their use”.

She acknowledged that in principle, local residents could challenge a local authority's unlawful disposal of land held under a statutory trust by way of judicial review, but if the proposed disposal was not advertised, they might well not learn of it in time. “By the time this claim for judicial review was issued on 19 December 2018, the Claimant was hopelessly out of time to challenge the lawfulness of the Town Council's disposal of the Site to IP2 on 4 October 2017.”

Mrs Justice Lang said that, applying section 31(2A) Senior Courts Act 1981, she considered it to be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, “because Shropshire Council would ultimately have concluded that the rights under the statutory trust, insofar as they subsisted, could not be enforced against the owner of the Site and applicant for planning permission, after the disposal of the Site to him by the Town Council in 2017, by virtue of subsections 128(2) and 131(1) LGA 1972”.

The judge refused relief but granted permission to appeal to the Court of Appeal.