R Lorraine Elizabeth Maries v The London Borough of Merton

JurisdictionEngland & Wales
JudgeMr Justice King
Judgment Date31 July 2014
Neutral Citation[2014] EWHC 2689 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date31 July 2014
Docket NumberCase No: CO/814/2014

[2014] EWHC 2689 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice King

Case No: CO/814/2014

Between:
The Queen on the application of Lorraine Elizabeth Maries
Claimant
and
The London Borough of Merton
Defendant

Mr David Wolfe QC (instructed by Leigh Day) for the Claimant

Mr Kelvin Rutledge QC (instructed by South London Legal Partnership) for the Defendant

Hearing dates: Wednesday 21 st and Thursday 22 nd May 2014

Mr Justice King

Overview

1

These proceedings for judicial review were commenced on the 21 st February 2014. Permission was granted by Lang J on 3 rd April 2014.

2

The Claimant is the Chair of a local group of fellow residents of the defendant borough, known as Protect Dundonald Rec (PDR). She has told the court that the group was formed in April 2011 by local residents and users of the Dundonald Recreation Ground (DRG) to oppose building on the Recreation Ground.

3

Any emphasis in this judgment in the exposition of any statutory provision or material citation of evidence, is that of the court unless otherwise indicated.

4

The claim concerns the exercise by the defendant local authority of its powers of ' appropriation of land' under section 122(1) of the Local Government Act 1972. Section 122 is contained in Part V11 of the Act headed ' Miscellaneous Powers of Local Authorities'. It is to be found in a sequence of statutory provisions governing a local authority's powers to enter into land transactions, headed 'Land transactions – principal councils'. It immediately follows two sections concerning the acquisition of land (sections 120 concerning acquisition by agreement, and section 121 concerning compulsory acquisition). It precedes section 123 concerning the disposal of land. Its origins in predecessor legislation go back to a statutory modification of an original parliamentary standpoint that it was wrong for land to be retained for some other purpose when the authority no longer needed it for the purpose for which it had been acquired, at least if so compulsorily acquired, and that in such a situation it should be disposed of.

5

Section 122 thus contemplates the situation where a local authority wishes to use land for purposes different from that for which it was originally acquired, or for which it is currently held. It uses the concept of an ' appropriation' for such new purposes. Subsection (1) allows the land to be appropriated for any such new purpose so long as that purpose is one for which the council are statutorily authorised by statute to acquire land, but subject to two requirements. First the land must already belong to the Council. Secondly and critically for present purposes, the land must no longer be required for the purposes for which it is currently held.

6

Thus section 122(1) provides:

'Subject to the following provisions, a principal council may appropriate for any purpose for which the council are authorised by this or any other enactment to acquire land by agreement any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation; but the appropriation of land by a council by virtue of this subsection shall be subject to the rights of other persons in, over or in respect of the land concerned.'

Open spaces

7

Where as in this case, the land in question forms part of 'an open space', a further precondition is the giving of prior public notice of the proposed appropriation by newspaper advertisement and the giving of consideration to any objections. See subsection (2A) of s.122.

8

Once appropriated however any such open space land is freed from any trust under which it was hitherto held for the enjoyment of the public by virtue of s 164 of the Public Health Act 1875 (pleasure grounds) or section 10 of the Open Spaces Act 1906) (duty of a local authority to maintain open spaces and burial ground). See subsection (2B) of section 122.

Dundonald Recreation Ground

9

Dundonald Recreation Ground is an open public space of some 48,000 square metres in a built up area within the defendant borough. It was acquired by the defendant's predecessor (the Local Board for the District of Wimbledon) from Messrs James and John Innes by an Indenture dated the 16 th December 1893, to 'hold … unto and to the use of the Board their successors and assigns as a Public Pleasure Ground'. Under the terms of the Indenture the land was made subject to the burden of a restrictive covenant that it ' shall ever be used as a public pleasure ground and that no building or other erection not reasonably required for use in connection with a pleasure ground shall at any time be erected.'

10

The acquisition was pursuant to the provisions of section 164 of the Public Health Act 1875 which provides as far as is material:

'Any urban authority may purchase or take on lease … lands for the purpose of being used as public walks or pleasure grounds…'

Held in trust

11

It is common ground that the land has since been held by the local authority, and therefore the defendant, on trust for enjoyment of the public for the purpose for which it was thus acquired under the 1875 Act, i.e. as a public pleasure ground, notwithstanding that the 1875 Act (unlike the Open Spaces Act 1906, in section 10, in relation to open spaces acquired under that Act) does not expressly provide for such trust. In support of this proposition I was referred to the decision of Kennedy J. in Darlington Borough Council ex parte Indescon Ltd [1990] 1 EGLR 270 dealing with analogous duties of a local authority under section 123(2) of the Local Government Act 1971.

12

The regulation of the public use of such public pleasure ground has hitherto been by way of byelaws made by the defendant or its predecessors under section 164 of the 1875 Act and under section 15 of the Open Spaces Act 1906, applicable by virtue of section 12 of that Act notwithstanding the land was not itself acquired under that Act.

13

Thus, as to the 1875 Act, section 164 provides as far as material:

'Any urban authority may make byelaws for the regulation of any such public walk or pleasure ground, and may by such byelaws provide for the removal from such public walk or pleasure ground of any person infringing any such byelaw by any officer of the urban authority or constable.'

14

And as to the 1906 Act, section 15 provides as far as is material:

'A local authority may, with reference to any open space… in or over which they have acquired any estate, interest or control under this Act…, make byelaws for the regulation thereof, and of the days and times of admission thereto, and for the preservation of order and prevention of nuisances therein, and may by such byelaws impose penalties recoverable summarily for infringement thereof, and provide for the removal of any person infringing any byelaws …'

While section 12 provides as far as is material:

'a local authority may exercise all powers given to them by this Act respecting open spaces… in respect of any other spaces. … of a similar nature which may be vested in them in pursuance of any other statute, or of which they are otherwise owners.'

The current byelaws

15

The current applicable byelaws of the defendant (made under both the 1875 and 1906 Acts) are those of September 1992. The Dundonald Recreation Ground is listed in Schedule 1 as one of a number of 'Grounds Regulated Under Section 164 of the Public Health Act 1875'.

16

They allow for the local authority to set opening and closing times (see byelaw 3).

17

They allow, by byelaws 13 and 14, for the council to set apart by a displayed notice displayed in the ground, an area of the Ground for the purpose of the playing of a specific game, which requires exclusive use of that part for the duration of the game, to the exclusion of any other activity, and except where exclusive use of such an area has been granted for the playing of a particular match, members of the public are entitled to use a set aside area for the playing of such game, on a 'first come first served basis' to the exclusion of others but with a limit of two hours continuous use if any other player or players make known their wish to use the space. This is the effect of byelaws 13 and 14. The penalty for any person offending them is that of removal from 'the pleasure ground' (byelaw 22).

18

It was also common ground before me that these byelaws do not themselves empower the council to grant, for example by licence, a defined person or group of persons or any other organisation exclusive use of or exclusive third party rights over any given area to the exclusion of others and enforceable against such others.

19

Nor did I understand it to be in dispute that if the council were to discontinue the setting aside of a particular area, that part would simply revert to being part of the general pleasure ground accessible to members of the public to the same extent as any other part.

Background to present Claim

20

The Defendant has embarked upon a major school project, which encroaches upon the recreational ground to enlarge the adjacent primary school, the Dundonald Primary School, by extending the school buildings onto part of the Recreational Ground together with some external space and to replace an existing pavilion and existing recreational/sports facilities with a new set of tennis courts/multi games area which are to become shared facilities that is to say shared as between the school and the public with the school by Licence to have exclusive use (at least in respect...

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