English Devolution and Community Empowerment Bill

Debate between Lord Pannick and Lord Grabiner

Report stage
Monday 13th April 2026 Lords Chamber

[Lord Grabiner (CB)]

My Lords, if cream were added to the strawberries, I suspect it may be more attractive to the noble Lord, Lord Banner. I support Amendment 248 and I have added my name to the amendment of the noble Lord, Lord Banner.

In a nutshell, Amendment 248 has two purposes. First, it is intended to reverse the 2023 Supreme Court decision in the case of Dr Day v Shropshire Council. Secondly, it is designed to provide full protection for members of the public who are rightly concerned both to have a fair opportunity to be informed of a proposed sale of recreational land to which they have access and, if so advised, to challenge that sale. As to the first point, the decision in Day produces a very unsatisfactory result as a matter of law and, indeed, as a matter of common sense. We always hope that the law and common sense function in tandem. We have a tandem here but, unfortunately, it is facing in the wrong direction.

In the Supreme Court, Lady Rose said—I think this point has already been made by the noble Lord, Lord Jamieson—in paragraph 116 of her judgment:

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


The mess referred to by the learned justice is that, although the land was acquired by the purchaser in good faith and for value, and although the Local Government Act 1972 expressly confirmed that a good title passed to the purchaser, the fact that the council failed to advertise the proposed sale in local newspapers in the 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. It is permanently blighted because the original failure to advertise, as I think the noble Lord, Lord Banner, pointed out, simply can never be put right.

At a time when the Government are rightly concerned to increase the housing stock, it will be immediately apparent that the Day decision operates as a significant inhibition on that important social policy. The noble Lord, Lord Jamieson, recognises this point but, with great respect, I cannot agree with the conclusion that he arrives at.

As has been explained by the noble Lord, Lord Banner, the form of this amendment is rather different from its predecessor, which we put forward during the passage of the Planning and Infrastructure Bill some months ago. Pausing there, I should mention that the noble Lord, Lord Lucas, expressed the view that the one we are presented with in the House this evening is a late amendment. With great respect, I do not agree. This amendment was on the table in Committee in the course of this Bill; that is not a late amendment at all. During the Planning and Infrastructure Bill, some noble Lords expressed concerns to the effect that reversing the Day decision was all well and good, but it would leave members of the public who are rightly concerned to protect their recreational space with no ability to challenge a proposed sale or have their voices heard—a perfectly reasonable complaint, if I may say so.

That brings me to my second point. The amendment takes full account of those concerns. It would provide for a robust public consultation process. It would mean that an application would have to be made for what is called a statutory trust discharge order, 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 are met, the qualifying conditions are precise and stringent, most importantly what are called the new publicity requirements must be complied with, and the Secretary of State must be satisfied that

“it is in the public interest for the relevant land to be freed from the trusts by virtue of the order”,

which is qualifying condition F.

Noble Lords will have noticed that the public interest is defined in the widest possible terms—again, the noble Lord, Lord Banner, has made the point. I appreciate that there are more wide-ranging concerns regarding recreational space and general well-being, which have been expressed by, for example, the Campaign to Protect Rural England and other interest groups. For those groups, we are told our amendment does not go far enough. As to that, I respectfully make two points. First, this amendment has a very precise scope. It is not concerned with the much wider political issue of parks, trusts and protections and it should not be caught up in or delayed by that distinct political debate. The second point is that, for practical purposes, this amendment would produce real improvements in the law. The advertising requirements in the 1972 Act are minimal compared with what is proposed in this amendment. If the local authority had complied with the simple requirement to advertise locally for just two weeks, Dr Day’s claim would have failed. Indeed, his claim would have been dismissed as unarguable.

Your Lordships will of course appreciate that the noble Lord, Lord Lucas, has put forward something like 50 amendments to our Amendment 248. To be fair to him, a very large number of them have been withdrawn, for which we are grateful. I have studied his suggested amendments with some care, but I am not persuaded that any of them would in any way improve or clarify our Amendment 248.

[Lord Pannick (CB)]

My Lords, I agree with the powerful speeches made by the noble Lord, Lord Banner, and my noble friend Lord Grabiner. I just want to emphasise two points on Amendment 248, to which I have added my name. 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, then the purchaser takes free from the trust—that is Section 123 of the Local Government Act 1972. There is no question of the trust being sacrosanct in law. The only question to which this amendment is directed is what should happen if there has been a failure by the local authority properly to advertise the trust.

The second point I want to emphasise is that, if the local authority fails properly to advertise the sale, any interested person is perfectly entitled to bring a judicial review to challenge the sale within a short time period—normally three months but reduced to six weeks in the planning context. The vice of the present law, as stated by the Supreme Court, is that the purchaser in good faith remains bound by the trust, even though it is not responsible for the failure of the local authority to advertise and even though no legal challenge has been brought within the applicable time limits. The whole purpose of time limits in public law is to ensure that, after the expiry of the time limits, people can go about their business and can develop land in their interests and of course in the public interest. That is the context.

The noble Lord, Lord Banner, if I heard him correctly, said that in the interests of politeness he would not comment on the amendments to his Amendment 248. I am less polite than my friend the noble Lord, Lord Banner—

Planning and Infrastructure Bill

Debate between Lord Pannick and Lord Grabiner

Committee stage
Monday 15th September 2025 Lords Chamber

[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.