Alexander Keay Muir v Wandsworth Borough Council Smart Pre-Schools Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMrs Justice Lang
Judgment Date28 July 2017
Neutral Citation[2017] EWHC 1947 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/2956/2016
Date28 July 2017

[2017] EWHC 1947 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Lang DBE

Case No: CO/2956/2016

Between:
The Queen on the application of Alexander Keay Muir
Claimant
and
Wandsworth Borough Council
Defendant
Smart Pre-Schools Limited
Interested Party

David Matthias QC (instructed under the Direct Access Scheme) for the Claimant

Ranjit Bhose QC (instructed by Sharpe Pritchard LLP) for the Defendant

The Interested Party did not appear and was not represented

Hearing dates: 23 May and 18 July 2017

Approved Judgment

Mrs Justice Lang
1

The Claimant applies for judicial review of the Defendant's decision to grant a long lease of premises known as Neal's Farm Lodge and Cottage ("the premises"), situated on Wandsworth Common ("the Common"), in the London Borough of Wandsworth, to the Interested Party ("IP").

2

The IP is a limited company which intends to operate a private nursery at the premises for up to 62 pre-school children, aged 2 to 5 years.

3

The Defendant ("the Council") is the local authority which, pursuant to statute, holds the freehold of the land on which the Common is situated.

4

I granted permission to apply for judicial review at an oral renewal hearing on 18 October 2016. Holgate J. gave the Claimant permission to rely on an additional ground for judicial review on 25 April 2017.

Facts

5

Neal's Farm is situated in the north western part of the Common, near Dorlcote Road, though there is no direct vehicle access. It comprises Neal's Farm Lodge and Neal's Cottage which are set in small front and rear gardens. For many years, it was used partly as a café for the enjoyment of those using the Common, and also to provide residential accommodation for Common groundsmen, occupied under residential service tenancies. I consider its origin and early history later in my judgment.

6

In 2013/2014, the Council terminated the residential service tenancies, leaving Neal's Farm unoccupied, apart from the ground floor of the Lodge which continued to be occupied by the Skylark Café. In 2014, the Council rejected an offer from the operator of the café to lease the remainder of Neal's Farm as "uncommercial" and a plan to use it as offices for the Leisure and Culture Staff Mutual was abandoned because of the conversion costs.

7

In January 2015, the Council decided to place the premises (comprising the upper floor of the Lodge, the entirety of the Cottage, an outbuilding and the rear garden, totalling 1,905 sq.ft) on the open market to invite expressions of interest for a 10 or 15 year lease excluded from the Landlord and Tenant Act 1954, "subject to the successful applicant carrying out all works and obtaining requisite consents to bring the properties back into commercial use" (email from Mr Peter Tiernan, Principal Valuer, to estate agents, dated 28 January 2015). The email stated any lease could only be granted to a limited company.

8

It is apparent from the email evidence that Mr Tiernan was aware that the premises were subject to significant restrictions on use under the schedule to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 ("the Long Act") because they were situated on the Common. The estate agent from Lambert Smith Hampton complained that the advice from the Council's Planning Department "seems to limit all use other than in connection with uses associated with the common, this rules out virtually all commercial uses". Mr Tiernan received advice from the Borough Solicitor to the effect that use of the premises as a children's nursery was a recreational or educational use consistent with the Long Act.

9

It is also apparent from the email evidence that Mr Tiernan was aware that the grant of a lease would amount to a disposal of open space land which would require a statutory disposal notice in accordance with section 123(2A) of the Local Government Act 1972 ("LGA 1972"), and any objections would have to be considered by the Community Services Overview and Scrutiny Committee.

10

Advertisements were placed in a local newspaper on 17 April and 15 May 2015. The Council sought expressions of interest specifying that "any use must provide a recreational or educational facility servicing the common". Ten expressions of interest were received. Nine were for proposed nursery use.

11

Lambert Smith Hampton sent details of the bids to Mr Tiernan, recommending that the lease be granted to the IP, who was the highest bidder. On 7 July 2015, Mr Tiernan passed this information on in an updating email to Councillor Cook (copied to Mr Andrew Algar, Assistant Director (Property Services) and Mr Tunde Ogbe, Head of Valuation and Asset Management) informing them of Lambert Smith Hampton's recommendation and reminding them that "the use of facilities on common land must be consistent with the 1967 'Long Act'". On 8 July 2015, Mr Algar replied to an email from Mr Ogbe confirming that he could go ahead and make a conditional offer to the IP, before hearing back from Councillor Cook.

12

On 15 July 2015 Lambert Smith Hampton sent a formal recommendation to Mr Tiernan advising that the IP was "an established nursery & nanny provider operating out of Wimbledon Hill" and "[t]he property is ideally placed for the nursery use proposed and therefore this has provided a much higher rent per sq. ft. than any recent D1 comparable evidence in the surrounding area" and, by reference to the schedule of bids attached, "best consideration has been achieved".

13

The Lambert Smith Hampton recommendation was signed by Mr Tiernan, and dated 16 July 2015, in his capacity as Borough Valuer, exercising delegated powers. He annotated the document by hand adding that the delegated power was "1.E(l)" and that "Letting subject to statutory consultation – s.123(2A) LGA 1972 + planning". Someone wrote on the top of the document "Commercially sensitive. Not to be released". The Defendant's evidence was that this document represented the Council's decision to lease the premises to the IP.

14

Mr Tiernan sent the approved recommendation by email to Lambert Smith Hampton stating "Please find approved Recommendation Report for your review and action". It was copied to Mr Ogbe.

15

The tenth expression of interest was from the Claimant who proposed an educational and recreational facility for use by local maintained schools. The Claimant's expression of interest was ruled out on the grounds that it did not provide sufficiently detailed information. The Claimant was notified of this decision by letter dated 9 July 2015. The Claimant complained to Councillor McDermott, who raised the matter with Mr Algar, and then responded to the Claimant. Eventually Mr Ogbe, Head of Valuation and Asset Management, instructed Lambert Smith Hampton to "press ahead with the letting" on 21 July 2015.

16

On 3 and 10 September 2015, the Council published notices in the local newspaper pursuant to the Long Act stating that it intended to grant a 15 year lease of the premises which it identified as "open space" and inviting objections, if any. No objections were received.

17

On 6 September 2015 the Claimant made a Freedom of Information Act 2000 (" FOIA") request which the Council responded to on 8 October 2015. The Claimant subsequently made further FOIA requests.

18

On 9 October 2015, the IP applied for planning permission for a change of use from residential (Use Class C3) to nursery/pre-school, classified as a non—residential institution under Use Class D1, as well as some minor building alterations. The proposed nursery would cater for 62 children aged 2 to 5, from 7.30 am to 6.30 pm on weekdays. About 15 staff would be employed by the nursery.

19

The Claimant asked for a meeting with the Council in November 2015, concerning irregularities in the bidding process, which the Council declined.

20

On 10 January 2016, the Claimant emailed the Council's Borough Solicitor requesting that the IP's planning application be reviewed as the change of use proposed – childcare, not education – was not consistent with the provisions of the Long Act.

21

On 1 February 2016, the Assistant Borough Solicitor replied stating that the proposed nursery use for the premises fell within the scope of Article 7(1)(a)(v) of the Schedule to the Long Act ("indoor facilities for any form of recreation whatsoever"). She added:

"Whilst it might be argued that part of the work of a nursery is education, it is predominantly recreational; nurseries serve very young children and whatever learning a nursery provides is learned through play – as such this is a recreational use. The legislation does not require uses of facilities to be limited to non-profit organisations."

22

On 16 February 2016 the planning officer's report was published. The report recommended that the application be approved subject to conditions. The report acknowledged that the site was "controlled" by the Long Act but asserted that "[t]his legislation and the processes to be followed under it, is not material to the determination of this application in the Council's role as local planning authority. Any reference to it is only provided for information purposes."

23

There were numerous objections to the application from local residents, the Wandsworth Society and the Wandsworth Common Management Advisory Committee.

24

At the hearing of the Planning Applications Committee on 24 February 2016, the Borough Solicitor advised the Committee that the restrictions in the Long Act were not a planning consideration and the application for planning permission had to be considered on its merits. Planning permission was granted as follows:

"Change of use from residential (C3) to nursery and preschool (Class D1) catering for up to 62 children (0–5...

To continue reading

Request your trial
2 cases
  • R Alexander Keay Muir v Wandsworth Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 9 May 2018
    ...IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE HON MRS JUSTICE LANG DBE [2017] EWHC 1947 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Patten Lord Justice Floyd and Lord Justice Coulson Case No: C1/2017/229......
  • R Peter Day v Shropshire Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 23 December 2020
    ...at pages 293 and 300, per Devlin LJ giving the judgment of the court; and, more recently, R (Muir) v Wandsworth Borough Council [2017] EWHC 1947 (Admin) at [82] per Lang 21 However, a section 10 trust is not a trust in the usual private law sense because, although the local authority is cl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT