R the Friends of Finsbury Park v Haringey London Borough Council Festival Republic Ltd and Another (Interested Parties) The Open Spaces Society (Intervenor)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Singh,Lord Justice Treacy |
| Judgment Date | 16 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1831 |
| Docket Number | Case No: C1/2016/2662 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 November 2017 |
[2017] EWCA Civ 1831
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (PLANNING COURT)
THE HON MR JUSTICE SUPPERSTONE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
Lord Justice Hickinbottom
and
Lord Justice Singh
Case No: C1/2016/2662
and
and
Richard Harwood QC (instructed by Harrison Grant) for the Appellant
Philip Kolvin QC and Ranjit BhoseQC (instructed by Haringey LBC Legal Services) for the Respondent
Robert McCracken QC and Juan Lopez (instructed by PBC Licensing Solicitors) for the Interested Parties
George Laurence QC and Ross Crail (instructed by Richard Buxton Environmental & Public Law) for the Intervenor
Hearing date: 2 November 2017
The Background
Large scale music festivals have been a particular feature of London parks since the 1960s. This appeal raises a narrow but important point as to the powers of London boroughs to permit parks to be used for such events.
The issue arises in the context of the hire of Finsbury Park ("the Park"), a 115-acre park owned by the Respondent London Borough ("the Council"), for an event known as the Wireless Festival 2016.
The Park has played host to large scale events, including commercial ticket-only concerts attended by tens of thousands of people such as this, for many years. These events are controversial, in the sense that they are clearly a source of great entertainment and enjoyment for those who attend; but they are, equally clearly, regarded as a considerable inconvenience to some who do not, particularly local residents and those whose enjoyment of the Park is diminished when they are displaced from those parts of the Park that are, from time-to-time, used for the events. It is therefore unsurprising that, over the last few years, these events have been the subject of much consideration by the Council.
The Council's Finsbury Park Management Plan 2013–16 included an events policy, namely that there would be a maximum of five commercial events of up to 30,000 to 40,000 people to be held each year, with a further maximum of three separate funfairs.
Under the Council's Outdoor Events Policy (which, after full consultation, was adopted on 7 January 2014), applications for major events in the Park have to be lodged at least nine months prior to the proposed date of the event, to allow for consultation with (amongst others) the Appellant, an organisation of Friends of the Park recognised by the Council. In 2014, the Council also set up the Finsbury Park Stakeholders Group, a group of elected councillors, officers from the Council and the adjacent London Boroughs of Hackney and Islington, local businesses, the police, residents and other interested parties including the Appellant. One key role of the Stakeholder Group is "to review and comment on initial and final draft event management plans for major events".
In addition to permission to hire the relevant part of the Park, any promoter of such an event also requires a premises licence from the Council's Special Licensing Sub-committee, under Part 3 of the Licensing Act 2003. That is also subject to a significant procedure, during which interested parties have an opportunity to make representations.
The Wireless Festival is an annual event, being held in Hyde Park and Queen Elizabeth Olympic Park before the festival moved to the Park in 2014. It is promoted by the Second Interested Party ("Live Nation"). Its application for a premises licence in 2013 incorporated an Event Management Plan of over 70 pages, a Crowd Management & Security Plan of similar length, a Medical Management Plan, a Waste Management Plan, a Noise Management Plan, a Show-stop Procedure, an Alcohol Management Plan, and Health and Safety Rules for Contractors. The Appellant was consulted and made representations generally adverse to the application. The application was granted by the Council through its Special Licensing Sub-committee on 16 December 2013, subject to 113 conditions.
The Council received many complaints in relation to the 2015 festival, which resulted in the Council's Overview and Scrutiny Committee setting up a review "to reflect on and understand the impact of recent large events that have taken place in Finsbury Park such as the Wireless Festival". The Appellant was invited to give evidence to the review, which it did. The Committee published its report in early October 2015, which set out various ways in which the impact of the festival could be mitigated.
The First Interested Party ("Festival Republic") is an associated company of Live Nation. Its application for the Wireless Festival 2016 was notified to the Appellant, as a consultee, on 3 December 2015. It required closing part of the Park from 25 June to 15 July 2016, with a two stage music event (including a community/charity event) on 2 July and a two or three stage music event on 8–10 July 2016. During the performance days, 27% of the Park would be closed to the public. The earlier stage of the event was later cancelled, with the result that the closures began, not on 25 June, but on 30 June 2016.
The Appellant submitted an objection, not only on the merits of the application, but also contending that the Council did not have power to authorise such an event. However, on 18 March 2016, the Leader of the Council, purporting to exercise powers under section 145 of the Local Government Act 1972 ("the 1972 Act"), determined to hire the relevant part of the Park to Festival Republic for the festival.
The Appellant commenced judicial review of that decision on 29 April 2016. At an expedited rolled-up hearing on 9 June 2016, Supperstone J granted permission to apply for judicial review, but dismissed the claim, giving his reasons in a judgment handed down on 22 June 2016 ( [2016] EWHC 1454 (Admin)).
The music festival went ahead. However, on the basis that this was an issue of some importance and would at least determine whether this annual event could take place in the Park in the future, on 19 December 2016, Lewison LJ granted permission to appeal on a single ground, namely that Supperstone J had erred in law in holding that section 145 of the 1972 Act authorised the Council to hire out the Park for the Wireless Festival 2016. Permission was refused in respect of all other grounds, and nothing more need be said about them.
Before us, Richard Harwood QC appeared for the Appellant, supported by George Laurence QC and Ross Crail of Counsel appearing for the Intervenor, the Open Spaces Society. Philip Kolvin QC and Ranjit Bhose QC appeared for the Council, supported by Robert McCracken QC and Juan Lopez of Counsel appearing for the Interested Parties. The court is grateful for their able, helpful and focused submissions.
The Law
The Park was established by section 7 of the Finsbury Park Act 1857, "for the use, recreation and enjoyment of the public". It was originally owned by the Metropolitan Board of Works (set up in 1855 as a cross-London borough public body, particularly to deal with infrastructure issues in the light of the rapid growth of the capital), but, as a result of successive local government reorganisations, its ownership has passed through the hands of a number of public bodies, including the London County Council, the Greater London Council and, now, the Council.
The 1857 Act has since been repealed; and, pursuant to article 32 of, and Schedule 5 to, the London Authorities (Property Etc) Order 1964 ( SI 1964 No 1464), the Park is now held by the Council for the purpose that is set out in section 10 of the Open Spaces Act 1906 ("the 1906 Act"), which provides, so far as relevant:
"A local authority who have acquired any estate or interest in or control over any open space or burial ground under this Act shall, subject to any conditions under which the estate, interest or control was so acquired—
(a) hold and administer the open space or burial ground in trust to allow, and with a view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation and for no other purpose…".
Section 20 defines "open space":
"The expression 'open space' means any land, whether inclosed or not, on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole of the remainder of which is laid out as a garden or is used for purposes of recreation, or lies waste and unoccupied."
For the sake of completeness, I should say that, even where a park has been established under statutory provisions that contain no express comparable trust (e.g. section 164 of the Public Health Act 1875 ("the 1875 Act")), these have been construed by the courts as having a similar effect (see, e.g., Attorney General v Sunderland Corporation (1876) 2 Ch D 634 at page 641 per James LJ, a case concerning the predecessor provision, namely section 74 of the Public Health Act 1848), i.e. it is held on trust for the purpose of public enjoyment. That construction was recognised by Parliament in section 122 of the 1972 Act, which concerns appropriation of land by local authorities and expressly refers to "land held in trust for enjoyment by the public in accordance with [section 164 of the 1875 Act]".
Therefore, the Council hold the Park under section 10 of the 1906 Act on a statutory trust for use by the public for its recreation, such that it has been said that the public are its beneficial owners (see Blake v Hendon Corporation [1962] 1 QB 283 at page 300 per Devlin...
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