R (on the application of Day) v Shropshire Council

R (on the application of Day) v Shropshire Council

The statutory trusts created by section 164 of the Public Health Act 1875 and section 10 of the Open Spaces Act 1906 are not extinguished by disposal of land by a local authority unless the authority complies with the procedure set out in section 123(2A) and (2B) of the Local Government Act 1972. Section 128(2)(b)...

Source-derived case information.

Parties
Appellant: Dr Day; Respondent: Shropshire Council
Jurisdiction
England and Wales
Judgment Date
01 March 2023
Procedural Posture
Judicial Review / Supreme Court Appeal
Outcome
Appeal allowed; grant of planning permission quashed.
Legal Topics
Statutory Trusts, Disposal of Public Land, Planning Permission, Public Rights, Local Authority Powers
Administrative Law Property Law Local Government Law Statutory Trusts Disposal of Public Land Planning Permission Public Rights Local Authority Powers

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Parties

Dr Day

Appellant

Shropshire Council

Respondent

Procedural Posture

Judicial Review / Supreme Court Appeal

Legal Issues

  1. 1 Whether statutory trusts under the Public Health Act 1875 and Open Spaces Act 1906 survive disposal of land by a local authority without compliance with section 123(2A) and (2B) of the Local Government Act 1972
  2. 2 Whether section 128(2)(b) of the Local Government Act 1972 extinguishes public rights under statutory trusts
  3. 3 Whether the existence of statutory trust rights is a material consideration in planning decisions

Ratio Decidendi

The statutory trusts created by section 164 of the Public Health Act 1875 and section 10 of the Open Spaces Act 1906 are not extinguished by disposal of land by a local authority unless the authority complies with the procedure set out in section 123(2A) and (2B) of the Local Government Act 1972. Section 128(2)(b) does not override these requirements or extinguish public rights. The continued existence of the statutory trust is a material consideration in planning decisions.

Court Disposition

Appeal allowed; grant of planning permission quashed.

Orders

  • Planning permission granted to CSE Development (Shropshire) Limited is quashed.
  • Local authorities must comply with statutory procedures before disposing of land subject to statutory trusts.