Government supports Devolution Bill amendment put forward by planning KC over open spaces and statutory trusts

Lord Banner KC told the House of Lords his amendment to the English Devolution and Community Empowerment Bill would give the Secretary of Sate powers to discharge such trusts, removing an anomaly that could see them continue indefinitely. It was passed by 162 votes to 55.

He explained that open spaces held by a local authority under the Public Health Act 1875 or the Open Spaces Act 1906 are subject to a statutory trust in favour of public recreation and the local authority may not dispose of any such land until it advertises its intention in a local newspaper for two weeks and considers any objections.

The problem arose where the advertising requirements have not been followed, and the effect of a Supreme Court judgment in Day v Shropshire Council “is that the statutory trust continues to exist after the land has been transferred, no matter how long ago that was and notwithstanding the absence of any challenge to the decision to dispose of the land, even if the purchaser was in good faith and was completely oblivious to the issue”.

Lord Banner said that since advertising cannot be done retrospectively, “the land is then permanently blighted by the trust and cannot be repurposed, no matter how strong the public interest in doing so.

“This issue is causing damaging uncertainty in relation to land purchased from local authorities in good faith, sometimes decades ago, even where the advertising may actually have been done, because in some cases the sale happened so long ago that the evidence about whether the land in question was properly advertised prior to the sale may no longer be readily available. This is holding up many developments across the country that already have planning permission.”

Opposing the amendment, Liberal Democrat Baroness Pinnock said Lord Banner’s amendment was not “a specific remedy for a specific case, but as a general proposal for any such issue without knowing what the implications of that will be. It is unclear”.

She added that it was “not known what the consequence of this amendment will be if it is passed. What of other areas of public land held in statutory trust by local authorities for the people they represent in their local area? It is not clear; we do not know. The evidence is not there. That is the problem.”

Mark Smulian