disposal of public open space

When local authorities set out an intention towards the disposal of public open space there are a number of procedural requirements that need to be complied with, as set out in the Local Government Act 1972 (“1972 Act”).

When disposing of public open space, the authority must advertise its intention in a local newspaper for two consecutive weeks and consider any objections before a final decision is taken to dispose of the land in question.

Recent case on the disposal of public open space

The recent case of R (Day) v Shropshire Council [2020] EWCA Civ 1751 has focussed attention once again on statutory trusts of public open space.

An area of land was acquired by Shrewsbury Borough Council in the 1920s, for the purposes of a recreation ground. The land fell into disuse and was transferred to Shrewsbury Town Council as part of local government reorganisation in 2010. In 2017, the land was sold to a developer.

Both the Town Council and the developer were unaware that the land was subject to a statutory trust for public recreation pursuant to the Open Spaces Act 1906 and the requirement to advertise a proposed disposal pursuant to Section 127(1) of the 1972 Act.

The developer subsequently applied for planning permission, which was recommended for approval. The officer’s report did not consider the status of the land. This decision was then challenged by way of judicial review on a number of grounds, including failure to take account of the statutory trust.


The court decided, on the basis of statutory construction, that the trust did not survive the disposal. The trust was tied into ownership and when that changed the trust ceased. The developer had not known of the trust on its acquisition of the land and as a purchaser without actual knowledge of the trust, took the land free from the trust by virtue of subsections 128(2) and 131(1) of the 1972 Act.

Practical implications

If the statutory procedural requirements are not followed then any disposal will still be valid and the trust will cease when the land is sold, where the buyer had no actual knowledge of the trust and the failure to comply with the statutory process.

The court did consider the implications of a non-compliant disposal where the purchase had actual knowledge of the non-compliance (a scenario is not covered by subsections 128(2) and 131(1) of the 1972 Act) and commented that, in those circumstances, a purchaser would take legal title subject to the statutory trust. The effect of this was not considered, but the court also commented that one possibility would be transfer back to the local authority.

This case reinforces the importance of recognising land which is held subject to statutory trusts and in following the procedures described in the 1972 Act to avoid the potential for a costly litigation and the consequential reputational embarrassment.