Supreme Court set to rule on importance of trust over public recreation land

The case will have wide implications about the status of public rights over land and the decision-making of planning authorities

The status of a piece of land in Shrewsbury, secured for public recreation by a statutory trust almost 100 years ago, will be considered by Supreme Court judges tomorrow (Wednesday 7 December).

Dr Peter Day’s appeal will make the case that the public enjoyed public rights to recreation over the land from around 1926. In 2017, Shrewsbury Town Council sold the land to a private developer without acknowledging it was part of the Greenfields Recreation Ground up to the period it was sold to the developer, and afterwards.

Dr Day argues the public’s rights to use the land for recreation should have been considered by Shropshire Council before they granted planning permission for a housing development on the land.

The High Court found in favour of Dr Day’s claim that the council failed to take reasonable steps to find out whether the site was part of the Greenfields Recreation Ground before it granted planning permission, but Judge Lang declined to quash the planning permission. The Court of Appeal rejected his appeal.

Dr Day and the Greenfields Community Group have waged a long campaign to save the land from development. Earlier this year, following the publication of an independent report, Shrewsbury Town Council apologised and pledged to return the land to public use. However, following legal advice, it has since decided to wait until the outcome of tomorrow’s Supreme Court hearing.

Dr Peter Day commented: “I am pursuing this legal claim to the Supreme Court so that we can settle once for all whether the plans for development on Greenfields Recreation Ground are unlawful.

“We are hopeful that the future of the Greenfields land will be settled soon, and very hopeful that the Supreme Court ruling will clarify the law regarding planning applications for other land held in trust for public use.”

The Supreme Court will consider two points:

• Was the Court of Appeal right to rule section 128(2)(b) of the Local Government Act 1972 means the statutory trust and public rights of recreation over the Greenfields land only apply if the developer can be shown to have known about the existence of the statutory trust before it bought the land? If the developer didn’t know about the trust before the purchase, are free to ignore it?
• Was the Court of Appeal right to rule the public recreation rights over the recreation ground were not material considerations that needed to be taken into account when it came to granting planning permission for housing development?

Dr Peter Day is represented by leading law firm Leigh Day, who has instructed Alex Goodman and Kimberley Ziya of Landmark Chambers.

Dr Day will argue when there has not been a proper consultation into the sale of land, the Local Government Act 1972 does not free open space land from the burden of a trust and from public recreation rights.

He points to the National Planning Policy Framework 2012 which states existing open space shall not be built on unless an assessment has clearly shown the land is surplus to requirements, or the loss would be replaced by equivalent or better provision elsewhere, or the development is for alternative sports and recreational provision.

Leigh Day solicitor Stephanie Hill said: “My client and his local community have been campaigning for several years to save their recreation ground. The outcome of this case is hugely important for the residents of Greenfields, and will also have wider implications about the status of public rights over land and the decision-making of planning authorities. We hope that the Supreme Court will agree that local authorities cannot disregard the public rights to recreation on land which has been protected by statutory trust for the benefit of local communities.”

The appeal to the Supreme Court is supported by Good Law Project who are crowdfunding to help with legal costs.

Ian Browne, legal manager at Good Law Project said: "This is an important case not just for the people of Shrewsbury, but for the right of communities throughout the country to have a say about what happens to their local green spaces. We hope that the Supreme Court will ensure that the public maintain access to recreation grounds even when they mistakenly fall into the hands of private owners. We’re very happy to be able to support Peter’s case and others like it through our crowdfunding campaign."