Protecting Public Recreation Grounds – Supreme Court Plugs Legal Loophole


In overturning planning permission for development of part of a recreation ground, the Supreme Court has decisively plugged a loophole in the law. The Court found that the land concerned continued to be subject to a statutory trust for the public benefit notwithstanding its sale to a private developer.

When the town council that owned the site sold it to the developer, it was unaware that it was subject to a statutory trust. It did not comply with the public consultation procedure laid down by Section 123 of the Local Government Act 1972. In particular, a requirement to advertise the proposed sale in the local newspaper for two consecutive weeks was not met.

The local planning authority later granted the developer planning consent to build 15 homes on the site. The permission was challenged by a local resident on the basis that the statutory trust continued to bind the land. His case was rejected by the High Court and subsequently by the Court of Appeal on the basis that the trust was extinguished on the site’s sale to the developer.

In unanimously upholding his appeal against that outcome, the Supreme Court noted that, if statutory trusts ceased to exist when relevant land is sold into private hands, it would be all too easy to get around the restrictions and conditions that apply to the sale of land held by public authorities in trust for the public benefit.

Parliament used very clear words when setting out what the town council needed to do before it could dispose of the land free from the statutory trust. The elaborate consultation requirements contained in Section 123 were evidently intended to ensure that members of the public should have the opportunity to learn about, and object to, the proposed sale of such land.

To the extent that the public’s rights in respect of the land continued to exist, the Court found that they remained enforceable against the developer as purchaser. The continuing statutory trust over the land was an important factor that should have been considered by the local planning authority. Given that it was not so considered, the planning permission had to be quashed.

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