Lord Banner (Con)

My Lords, Amendment 222C is in my name and those of the noble Lords, Lord Grabiner and Lord Pannick. Noble Lords who participated in the House’s recent consideration of what was then the Planning and Infrastructure Bill will recall that we proposed an amendment to that Bill with a view to addressing the wide-reaching consequences for persons who acquire former public open-space land in light of a Supreme Court decision known as Day: R (on the application of Day) v Shropshire Council [2023] UKSC 8. To recap, open spaces held by the 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 that land for the purpose of recreation. Section 123(2A) of the Local Government Act 1972 provides that the local authority may not dispose of any land consisting or forming part of an open space unless, before it does so, it advertises its intention to sell the land in the local newspaper for two weeks and then considers any objections received in response. Section 123(2B) provides that the sale of the land post-advertisement proceeds free of the statutory trust. In the Day case, the Supreme Court held that, even when the decision to dispose of open-space land has not been challenged, and even when it was made many years or even decades in the past, a historic failure to comply with the advertisement requirements means that the statutory trust continues to exist and therefore continues to frustrate the beneficial repurposing or redevelopment of the land in question. Crucially, that is the case even if the land was sold in good faith by the local authority to a bona fide purchaser who was completely unaware of any procedural irregularity, even if there remains no dispute that the land was surplus to requirements when it was sold. That is highly problematic; it means that the land that has been sold on the basis of an unchallenged decision that it is in the public interest to dispose of it—land that now has planning permission for beneficial reuse—is none the less permanently bound by the statutory trust and cannot be put to its intended beneficial use for which planning permission has been granted. Given that the advertising cannot be done retrospectively, the land may be blighted for ever. This is causing considerable uncertainty in relation to land purchased in good faith from local authorities, sometimes decades ago. The evidence about whether the land in question had or had not been properly advertised prior to sale may no longer be readily available, particularly in historic cases. Land that may very well have been properly advertised is brought within the blight because of this issue, and this is holding up many developments across the country that already have planning permission.