Killian Garvey, acting for Shropshire Council, was successful in the Court of Appeal defending the grant of planning permission by Shropshire Council.
The site where permission was granted had previously been open space, pursuant to a trust defined by the Open Spaces Act 1906. However, the majority of the site was sold by Shrewsbury Town Council in 2017. The sale of the land was unlawful, as statutory requirements for the sale of open space were not complied with. The issue for the Court is whether the site persisted as open space pursuant to a trust and/or whether this was a material consideration in the subsequent grant of planning permission.
The Court concluded that the site did not persist as open space under the Open Spaces Act 1906.
Furthermore, the Court were separately asked to consider whether the site could constitute open space under paragraph 97 of the National Planning Policy Framework. The Court concluded that open space for the purposes of the Open Spaces Act 1906 was different to open space within the NPPF. But, nevertheless, the site did not constitute open space in any event, whichever definition one applied.
Jonathan Wright appeared alongside Killian in defending the decision at first instance before Mrs Justice Lang, where Shropshire was also successful.