Trust in favour of public

March 3rd, 2023 by James Goudie KC

Land which is subject to a statutory trust in favour of the public is held by a local authority for the purpose of the public’s enjoyment.  In order for an authority to dispose of this type of land it must comply with statutory consultation requirements under Section 123(2A) of the Local Government Act 1972 (LGA 1972).  The issue raised in R (DAY) v SHROPSHIRE COUNCIL (2023) UKSC 8 is what happens to the public right to use this type of land when the authority disposes of the land, but has failed to comply with these requirements.

For many years Parliament has recognised the importance for local communities of having green spaces where people can take exercise, play sport and meet each other in the outdoors.  The events of recent years blighted by the Covid-19 pandemic, with compulsory lock downs and social distancing, have confirmed that recreation areas have a vital role to play in the physical and mental well-being of people living in an urban environment.  Legislation has conferred powers on local councils to acquire and lay out recreation grounds and provide them to residents.  Where a local authority uses the powers conferred by the Public Health Act 1875 or the Open Spaces Act 1906 to acquire and provide recreation land or open space to the public, the land is subject to a statutory trust in favour of the public and members of the public have a right to go onto the land for the purposes of recreation.  Moreover, the powers of local authorities to dispose of land in their possession, particularly land used for recreation, have been subject to conditions and limits over many years.

Sections 123(2A) and (2B) of LGA 1972 provide that before disposing of land which is subject to a statutory trust, the relevant council must advertise their intention to do so in the local newspaper for two consecutive weeks.  They must then consider any objections to the proposed disposal that they receive.  If the council disposes of land having complied with that procedure, then the land is freed from any public trust.

Section 128(2)(a) provides that a disposal of land which was subject to the consultation requirement “shall not be invalid by reason that” the requirement has not been complied with.  Section 128(2)(b) goes on to say that the purchaser of land “shall not be concerned to see or enquire” whether any such requirement has been complied with.  The council argued Section 128(2) extinguishes the rights enjoyed by the public under the statutory trust.

Considering the history of the provisions, the Supreme Court holds that Section 128(2) does not extinguish the rights enjoyed by the public under the statutory trust.  Those rights are only extinguished if the authority complies with the bespoke consultation requirements set out in Section 123.  Parliament used very clear words in Section 123(3) when setting out what the authority needed to do in order to dispose of land in a way which extinguishes the public’s rights under the statutory trust.  The elaborate provisions of Section 123 were evidently designed to ensure that members of the public should have the opportunity to learn about and object to a proposed sale of statutory trust land.

The Supreme Court holds, allowing the appeal, that in light of the clear and specific wording in Section 123, the generally applicable provision in Section 128(2) cannot be used to override the statutory trust.  Section 128(2) confers a useful protection for people dealing in land with the authority.  However, Section 128(2) is not designed to free land from the public trust when that land is sold.  Furthermore, in so far as the public’s rights in the land continue to exist, Section 128(2) does not have the effect of making these rights unenforceable against the purchaser.

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