John Szepietowski Reviews Day, R (On the Application Of) v Shropshire Council [2020] EWCA Civ 175

Lord Justice David Richards, Lord Justice Hickinbottom, and Lady Justice Andrews heard an appeal in relation to the disposal of land that was subject to a statutory trust in favour of the public. The issue that considered by the Court of Appeal, was whether the local authority’s failure to comply with the statutory requirements, under Section 123 (2A) The Local Government Act 1972, for advertising the disposal of land for two weeks in a local newspaper would override the statutory trust for public recreational purposes.

The land in question was originally owned by Shropshire Council until it was later transferred to Shrewsbury Town Council in 2010. The land became wasteland and it was sold by Shrewsbury Town Council to a developer who planned to utilise the land for the construction of fifteen properties. Shrewsbury Town Council did not advertise their intention to dispose of the land. The purchaser, unaware of the statutory trust in place, applied to Shropshire Council for the relevant planning permission,  which the local authority agreed to grant. However, as Shrewsbury Town Council was non-compliant in following the necessary legal procedure for selling land subject to a statutory trust, Day argued that Shropshire Council had a duty to take reasonable steps to enquire into the status of the land.  Day contended that Shropshire Council ought to have rejected the planning permission on the account of Shrewsbury Town Council’s unlawful actions.

In the first instance, Lang J found in favour of Shropshire Council by reason that the trust could not be enforced against the purchase who was an innocent party to the matter. Although Lang J concurred that Shrewsbury Town Council acted unlawfully, she refused to grant relief because had they been lawful, it is still likely Shropshire Council would have granted planning permission thus the position would unlikely be different. Judicial review of the case was refused which led Mr. Day to apply for an appeal based on Lang J’s failure to appropriately consider the public’s interest in the land and to grant suitable action in the case.

The judges in the appeal concluded that the trust ended upon sale to the developer despite the local authority’s failure to comply with the applicable legislation. The judges reiterated Lang J’s decision that it was unlikely Shropshire Council would have rejected the planning permission had they been aware of Shrewsbury Town Council’s error. Despite Shropshire Council’s efforts, the judges further agreed with Lang J’s decision on costs, therefore, no order for costs was granted.

Please contact John Szepietowski at Audley Chaucer for details on this matter or any other legal topic

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