Open spaces can crop up on development sites and regeneration projects and, especially when unbuilt on, they can appear to be readily available for redevelopment. However, there are lots of considerations to factor in when dealing with open spaces. They may be subject to a statutory trust (if originally acquired to provide recreation or open space to the public), registered as a town and village green, listed as an asset of community value or, in the case of playing fields and allotments, enjoy certain statutory protections.
In 2023, the Supreme Court set out their approach to the treatment of land subject to a statutory trust in their judgment in R (on the application of Day) v Shropshire Council. In this case, a developer acquired land from Shrewsbury Town Council and was granted planning permission to build out a residential development. The land was identified in the local plan as an area of focus for development, but it was also later discovered to be subject to a statutory trust. The Supreme Court ruled that the planning permission granted to the developer could be quashed because the requisite statutory procedure had not been followed prior to the sale to the developer. As a result, the statutory trust was still in existence following the developer's acquisition, even though the land had been acquired in good faith and the developer unaware of the trust's existence. This was held to be sufficient grounds for overturning the grant of the planning consent.
Currently, there are no means of searching public registers or resources for statutory trusts; although local authorities may be able to examine historic maps and records of the land use to determine how they acquired the land and whether there are likely to be any statutory trusts in existence. Parties looking to acquire land from local authorities should consider conducting enhanced due diligence in relation to statutory trusts. We would suggest raising specific pre-contract enquiries as well as requesting evidence of compliance with the procedure for the sale of land subject to a statutory trust (as set out in the Local Government Act 1972), backed up by contractual protections where appropriate.
Statutory trusts are just one of the factors to consider when dealing with open spaces. Please get in touch with us for specialist advice in this area, and in relation to any other matters affecting the development of open spaces.
