English Devolution and Community Empowerment Bill

Lord Grabiner Excerpts

Committee stage
Thursday 5th March 2026 Grand Committee

I urge Members to treat with considerable caution the frankly fallacious and misleading briefings in some quarters about this amendment. It does not make it easier to get planning permission to develop open space. The planning protections are unchanged. It is untenable to say that this is the same amendment, or even substantially the same, as the previous one. It is deeply layered with new safeguards, including a requirement to advertise so as to make good any previous failure to advertise the sale. To repeat: the discharge order may be made only if judged to be in the public interest. Only those with private interests that they wish to protect at the expense of the public interest can be worried about that. I beg to move.

[Lord Grabiner (CB)]

My Lords, I support this amendment and have added my name to that of the noble Lord, Lord Banner. I am afraid that the noble Lord, Lord Pannick, is unable to be with us this afternoon and apologises to the Committee for his absence. The background has been well explained by the noble Lord, Lord Banner, and I shall emphasise a couple of points.

The purpose of the amendment is to reverse the decision of the Supreme Court in the case of Dr Day v Shropshire Council. In paragraph 116 of her judgment, Lady Rose very fairly said:

“I recognise that this leaves a rather messy situation”.


The mess referred to by the learned Supreme Court Justice is that, although the land was acquired by the purchaser in good faith and for value, and the Local Government Act 1972 expressly confirmed that a good title passed to the purchaser, the fact that the local council failed to advertise the proposed sale in local newspapers for two weeks meant that the public right to go on the land for recreational purposes remained in place. As a result, the land cannot be developed and, as the noble Lord, Lord Banner, suggested, it is blighted, effectively forever, because the original failure to advertise cannot ever be put right. Also, your Lordships will readily appreciate that the original sale by the local authority in such cases may have taken place many years earlier, which would likely give rise to the key evidential question: was the original sale properly advertised? It would be impossible to go back to the records in a case that had happened many years earlier.

The noble Lord, Lord Banner, explained what happened in Committee and on Report during the passage of the Planning and Infrastructure Bill, and I need not repeat the history. That said, when this issue was before this House, concerns were expressed by some noble Lords about the form and content of that amendment. The concern—I hope that I summarise it accurately—was that the amendment would merely have reversed the decision in the Day case, leaving members of the public who are concerned to protect recreational space with no ability to challenge a proposed sale.

Amendment 222C takes full account of that concern. It would make provision for a robust public consultation process; it would mean that an application would have to be made for a statutory trust discharge order, associated with strict requirements for the giving of notices and the publication of suitable local advertisements. Before making the order sought, the Secretary of State would be obliged to take account of all comments received and would have to be satisfied that the qualifying conditions were met, as per proposed new Section 128A(2)(b). The qualifying conditions are precise and stringent, as laid out in proposed new Section 128D. Most importantly, new publicity requirements, as set out in proposed new Section 128E, would have to be complied with, as per proposed new Section 128(D)(9), and the Secretary of State would have to be satisfied—this is critical—that it was in the public interest for the relevant land to be freed from the public trusts by virtue of the order, as per qualifying condition F in proposed new Section 128D(10). I inserted the word “public” there for clarification purposes. The public interest is fully defined. I do not need to repeat what the noble Lord, Lord Banner, already said on that point, but it is defined in the widest possible terms in proposed new Section 128D(11).

I appreciate that there are more wide-ranging concerns regarding recreational space and general well-being, as expressed by the Campaign to Protect Rural England and others. For those groups, we are told, this amendment does not go far enough. I will respectfully make two points on that. First, this amendment has a very precise scope. It is not concerned with the much wider political issue of—

[The Deputy Chairman of Committees (Baroness Morgan of Drefelin) (Lab)]

My Lords, there is a Division in the Chamber. The Committee will adjourn for 10 minutes.

--- Later in debate ---

[Lord Grabiner (CB)]

My Lords, your Lordships will pleased to know that I have accepted the advice of others that it would not be acceptable for me to start again. I had actually reached the last paragraph before we were—I will not say rudely, but I simply say—interrupted by the Division Bells. I was just about to make my two closing points. These were in response to the suggestion from various interested groups outside whose contention is that Amendment 222C does not go far enough. I shall make two points in response to that suggestion.

First, the amendment has a very precise scope. It is not concerned with the much wider political issue of parks’ trusts and protections. In my view, it should not be caught up in, or delayed by, that distinct political debate—it is a separate issue. The second point is that, for practical purposes, the amendment would actually produce significant improvements in the law. The advertising requirements in the 1972 Act are minimal compared with the amendment. If the local authority had complied with the simple requirement to advertise locally for two weeks, Dr Day’s claim would have failed. Indeed, he would never have started the action.

[Lord Lucas (Con)]

My Lords, my noble friend Lord Banner, unsurprisingly, makes an eloquent case for his Amendment 222C. I very much hope that the Minister will hold to what she said when this issue was addressed previously and reassert the Government’s commitment to a wider review of the existing protections to bring coherence to the legal framework, making protections more transparent and accessible so that communities can protect their most valued spaces, to paraphrase what she said.

At the heart of the amendment lies the travails of the All England Lawn Tennis Club. I declare an interest as a resident of Eastbourne and, therefore, as someone who holds a very low opinion of that organisation, which seems to be entirely concerned with itself and its money and very unconcerned with the communities that it interacts with. That is a widely shared opinion, as noble Lords will know—although they may not agree with it.

The troubles that the ALTC is facing have roots in the predecessors of assets of community value. We have long considered that communities have rights when it comes to the places and spaces that they enjoy. These have grown complicated and difficult to understand and enforce, which is why the Minister’s review is needed. But these places and spaces are needed and should be respected.

In this particular case, the ALTC has behaved abysmally, and it should not be advantaged by shortcutting what should be a careful review. I would like to see it soon and done with speed, but it should be an open public review, involving national bodies and others that are interested in the protection of public trusts and recreation rights to arrive at a coherent, well-agreed solution to this problem. To do it by way of an amendment in a Bill is far too limited; there are far too few opportunities to really get into the competing rights and interests that are involved here. I urge the Minister to stick to her previous resolution.

--- Later in debate ---

[Baroness Pinnock (LD)]

I was making a point about public consultation. Since the land is held by a trust for public benefit and for the public good, it seems to me that some consideration should be given to giving the people who benefit from that trust—the community; I am sure it could be defined—some sort of veto over any change in the status of the land held in public trust. Obviously, it could not be just half a dozen folk thinking that it should not happen, but if there were a huge swell of public opinion in favour of keeping the land in a public trust, as was done many years before, maybe that ought to be an option for local people.

There are various places across different parts of the country where the council’s own land in public trust would be affected if this amendment were accepted by the Government. The ones I have been able to find—apart from Wimbledon, of course—include Winchester, Swansea, Finchley, Hornsey and many others. Once a statutory trust discharge order takes effect, the land would be freed from the trust “generally”. Its status would be altered for all time, regardless of who holds the title. We should not enable a statutory loophole in this amendment that would allow the procedural errors of the past to become the justification for stealing the green lungs of our communities in the future. As noble Lords might have realised, the Liberal Democrats strongly oppose this amendment and stand on the side of communities that strive to protect the integrity of our public open spaces held in trust.

I finish with a common little rhyme that emerged from the 18th century when the enclosures were taking place at great pace—when common land was taken by landowners. It goes:

“The fault is great in man or woman,


Who steals a goose from off a common;

But who can plead that man’s excuse,

Who steals the common from the goose?”

[Lord Grabiner (CB)]

Before the Division Bells, the noble Baroness was very dismissive of the consultation process, which is spelled out in the amendment. She referred to what sounded like her own unpleasant experience of such processes in the past. I wonder whether, on reflection—we have had a bit of time to reflect during the break—she thinks that a fair criticism of the amendment.

[Baroness Pinnock (LD)]

My Lords, the difficulty the public have with the word “consultation” is that they often dismiss it as being a mere sop by those who want to change the order of things, whatever that might be. Consultation is frequently used; it is a basic part of the planning process. Often, members of the public make representations based on planning law, the NPPF and local plans, but nevertheless the developers overcome those objections. It is the same with changes to the structure of local authorities. Consultation has become, “You can have your say, but in the end you’re going to be overruled”.

With something as serious as this, where land has been donated for public use for many years and held in trust—a word we need to reflect on—for public use, it should not be easy to remove that public trust, in effect removing the public from the trust. In my view, using a device called consultation is totally inadequate in those circumstances. There ought to be a different way of determining whether land should be taken out of that protection.

Planning and Infrastructure Bill

Lord Grabiner Excerpts

Committee stage
Monday 15th September 2025 Lords Chamber

[Lord Banner (Con)]

My Lords, Amendment 227E, tabled in my name, among others, would address the wide-reaching consequences of a recent Supreme Court decision in a case called Day for persons who acquire former open-space land from local authorities. The context for this is 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 the public being given the right to go on to the land for the purpose of recreation. When a local authority wants to sell open-space land, typically because it is either surplus to requirements or part of a land swap to facilitate new, higher-quality open space elsewhere, its decision-making process is subject to various procedural and substantive safeguards, under both statute and common law.

One of the procedural requirements is Section 123(2A) of the Local Government Act 1972. This provides that the local authority may not dispose of any land consisting or forming part of an open space unless before doing so they advertise their intention to do so in a local newspaper for two weeks and consider any objections to the proposed disposal received in response to that advertisement. Under Section 123(2B) of the same Act, the sale of the land post-advertisement then proceeds free of the statutory trust. If a local resident or community group considers that any of the procedural substantive requirements regulating the disposal of land have been breached, they have a remedy: they can bring a claim for judicial review of the local authority’s decision.

In public law, the normal position is that if a public body’s decision is not challenged within the three-month time limit for bringing a judicial review claim, that decision is treated as having all the effects in law of a valid decision. However, in Day, the Supreme Court held that even when the decision to dispose of open-space land has not been challenged at the time of disposal, and may be many years and even decades in the past, a historic failure to comply with the advertisement requirement means the statutory trust persists, thus frustrating the repurposing or redevelopment of the land in question. That is the case, the court reasoned, even if the land was sold to a bona fide purchaser who was completely unaware of any procedural irregularity, and even if there remains no dispute that the land was surplus to requirements.

The effect of this is deeply unsatisfactory. It means that the land which has been sold on the basis of an unchallenged decision that it is in the public interest to dispose of it, which may have planning permission for beneficial redevelopment, is now bound by the statutory trust and cannot be put to its intended beneficial reuse. It sits uncomfortable with the public law principle that unchallenged public decisions should be treated as valid, and with the property law principle that a bona fide purchaser, without notice of equitable interests, takes land unencumbered by those interests. This is causing huge uncertainty in relation to land purchased many years ago—sometimes decades, as I mentioned. The evidence about whether land in question had been advertised prior to sale may no longer be readily available. This is holding up many developments across the country which already have planning permission.

A high-profile example of that is the current proposal to expand the All England Lawn Tennis Club’s internationally renowned facilities at Wimbledon to an adjacent former golf club site, the planning permission for which was recently upheld by the High Court. Claims that it is subject to a statutory trust in the light of the Day judgment are holding up the development and with it the substantial benefits to UK PLC that it would deliver.

Amendment 227E would deal with this issue by providing that bona fide purchasers of former open-space land and their successors in title are free from the burden of a statutory trust. This would not remove the local authority’s duty to advertise before disposing of open-space land, nor would it remove any of the other legal safeguards on the decision-making process relating to such disposal. It would not interfere with the public’s right to challenge a decision to dispose of such land within the usual three-month window for bringing a JR claim.

What it would do, however, is ensure that, where there has been no such challenge and the transaction was made in good faith, the purchase is not subject to the deleterious uncertainty and burdens that I have outlined. This would be consistent with the Government’s stated desire to streamline the planning system and deliver the growth this country needs. I respectfully urge the Minister to give it serious thought.

[Lord Grabiner (CB)]

My Lords, I support the noble Lord, Lord Banner, and have added my name to his amendment.

Every so often, we get a court decision which produces an unsatisfactory outcome. If, as is the position in relation to this amendment, it is a decision of the Supreme Court, there is no further appeal process. In that event, it is possible to have recourse to Parliament for the resulting problem to be put right. This is such a case.

Quite often, because of the demands made on parliamentary time, it is not practical to get a speedy solution. Fortunately, the Planning and Infrastructure Bill is in progress and is, I believe, tailor-made for the resolution of this problem. The mischief addressed by the amendment was, as you would expect, identified by Lady Rose, delivering the unanimous judgment of the five-judge Supreme Court in the case of R (Day) v Shropshire Council that we are concerned with. In paragraph 116, at the end of her judgment, Lady Rose said:

“I recognise that this leaves a rather messy situation”.


This is one of those situations where Parliament can and should step in to perform some corrective surgery.

I will not weary your Lordships with a detailed analysis of some arcane trust law or a lengthy exegesis of Section 164 of the Public Health Act 1875, Sections 123 and 128 of the Local Government Act 1972, and the provisions of the Open Spaces Act 1906—the noble Lord, Lord Banner, has already done that. I do not mean he has bored your Lordships; I mean he has accurately, if I may respectfully say so, summarised the import of that mixture of ancient legislation.

Where a local authority is proposing to dispose of land, it is technically obliged to advertise that fact for two successive weeks in the relevant local press—that is by virtue of Section 123 of the 1972 Act. This enables residents to register their objections in advance of the disposition. It is a consultation process. I describe the advertising requirement as technical because the 1972 Act specifically provides that any failure to advertise—for example, by mistake or oversight—will not impede or undermine the transaction. The buyer is fully protected and gets title to the land purchased—that is Section 128, as the noble Lord, Lord Banner, made reference to.

That provision says that the sale is not invalid for want of advertising and that the purchaser

“shall not be concerned to see or enquire”

whether the advertising requirement has been satisfied. Careful and complex historical investigation conducted by a potential purchaser may reveal that the land is subject to a public or statutory trust under the 1875 Act, entitling the public to go on to the land for recreational purposes. The effect of the Day case is far-reaching. It is accepted that the purchaser gets a good title, but the failure to advertise means that the public right to use the land remains in place. Moreover, that will continue to be the case for ever, because only the local authority has the power or duty to advertise under the 1972 Act, so it has a most profound and permanent effect.

Your Lordships will immediately appreciate the devastating impact of the Day decision. The land is blighted. The potential purchaser—for example, a developer—will walk away either because he does not know if the parcel of land, for historical reasons, is caught by the 1875 Act, or because he discovers it is caught, he can do nothing about it and his development plans would be frustrated. At a time when it is in the public interest to encourage housebuilding, it is important that unjustifiable impediments should not be allowed to undermine the furtherance of that crucial objective.

One can see that an objection to the amendment might be made along the lines that the public right to enjoy the land would be taken away. That is true, but there are two important countervailing arguments: first, there is an important public interest in doing whatever we can about the chronic housing shortage; secondly, it is obvious that, in the 1972 Act, Parliament was giving local authorities the power to sell the land and thereby to ensure that the public recreation rights would fall away for ever. The decision in Day makes it plain that if the advertising requirement had been satisfied, the public right would indeed have disappeared. When we take account of the fact that the purchaser gets a good title in any event, the intention of Parliament in 1972 is clear. That Act was designed to facilitate or ease the transfer of land.

The Day decision has produced an uncontemplated hurdle that can, and I respectfully suggest should, be set aside. I hope your Lordships, and indeed the Government in particular, agree with this analysis and will agree to the amendment.

[Lord Pannick (CB)]

My Lords, I too have added my name to the amendment. As the noble Lord, Lord Grabiner, has just mentioned, the Supreme Court concluded its judgment by recognising that it would leave a “rather messy situation”. This amendment gives Parliament the opportunity to clear up that mess. The mischief that the noble Lord, Lord Banner, explained is impeding many developments up and down the country, not least the plans of the All England Lawn Tennis Club to expand its facilities at Wimbledon—a much-needed development that will enable the club to better perform its functions of national and, indeed, international importance. It is a great pleasure to follow the noble Lords, Lord Banner and Lord Grabiner, in relation to this development; they are a formidable doubles team. I will just add a few points.

The first point I want to emphasise is that the law already provides that, if the local authority complies with the statutory requirements and properly advertises the sale, the purchaser takes the land free from the trust. See Section 123 of the Local Government Act and paragraph 102 of the Supreme Court judgment. There is no question of the trust being sacrosanct in law.