Public Open Space

January 14th, 2020

In R (Day) v Shropshire Council and Shrewsbury Town Council (2019) EWHC 3539 (Admin) Lang J held that land (1) was open space, distinguishing  Whitstable Society v Canterbury City Council (2017) EWHC 254 (Admin), (2) was subject to a statutory trust under the Public Health Act 1875 and the Open Spaces Act 1906, following R (Friends of Finsbury Park) v Haringey LBC (2018)  P.T.S.R. 644, and (3) had not been validly appropriated to any other use.  The requirement therefore applied under Section 123(2A) of the Local Government Act 1972 (“LGA 1972”) to advertise a proposed disposal of any part of the land and to consider objections. This the Town Council had failed to do.  However, the public rights could not be enforced against a buyer. The legal effect of a disposal is governed by LGA 1972, Sections 128 and 131, not by the private law of trusts. Lang J said, at paragraph 116:-

“…Furthermore, subsection 128(2)(a) LGA 1972 upholds 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. Subsection 128(2)(b), which provides that a person dealing with the authority or a person claiming under the authority shall not be concerned to see or enquire whether the notice and consideration of objections requirements have been complied with, relieves the buyer of any responsibility or legal liability for checking that the statutory requirements have been complied with. As I understand it, in these circumstances the Land Registry will not call for evidence that the statutory requirements have been complied with before registering the transfer of title. In my view, subsection 128(2)(b) LGA 1972 is inconsistent with the Claimant’s interpretation that the statutory trust is enforceable against the buyer unless or until the notice and consideration of objections requirements have been complied with. If that were the case, plainly a buyer would be concerned to see and enquire whether those requirements had been met, and paragraph (b) would be misleading. Subsection 128(2) contains two separate protections for the buyer: paragraph (a) protects the validity of the transaction and paragraph (b) protects the buyer from the need to inquire into the local authority’s compliance with subsection 123(2A) LGA 1972, and thus whether the statutory trust has been extinguished under subsection 123(2B) LGA 1972. Reading these paragraphs together with subsection 131(1) LGA 1972, which excludes statutory trusts from the protection afforded to other trusts, I consider that their purpose and effect is that the public rights under the statutory trust, insofar as they subsist, cannot be enforced against the buyer.”

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