Local authority – Public open space – Lease – Defendant local authority granting interested party limited company long lease of park land for use as football academy and turf academy – Land held subject to public trust – Claimant local resident applying for judicial review – Whether proposed use permitted by 1967 Order regulating open spaces – Application dismissed
The defendant local authority was the freehold owner of Whitewebbs Park in Enfield. The park was open space for the purposes of the Greater London Parks and Open Spaces Order 1967 and held subject to a public trust.
In July 2023, the defendant entered into an agreement with a wholly owned subsidiary of the interested party (THFCL) to grant a 25-year lease of part of the park for use as a women’s and girls’ football academy and a turf academy. In September 2023, the parties entered into the agreement for lease.
The claimant was a retired teacher who lived locally and regularly visited the park and opposed the disposal. He applied for judicial review of the defendant’s decision contending that the defendant: (i) had no power to grant the lease because its power under section 123 of the Local Government Act 1972 to dispose of land within the park was restricted by the Greater London Parks and Open Spaces Order 1967; (ii) failed in its duty under section 122(1) of the 1972 Act to consider whether the land continued to be required as public open space; (iii) failed to take properly into account the statutory purposes for which it held the park as public trust land; and (iv) was wrongly advised that it could treat the premium payable for the lease as a capital receipt when it was obliged to re-invest the money in the remaining public trust land at the park.
Held: The application was dismissed.
(1) Sections 122(2B) and 123(2B) of the 1972 Act referred to trusts arising by virtue of land being held on trust for the enjoyment of the public in accordance with section 164 of the Public Health Act 1875 or section 10 of the Open Spaces Act 1906 (public trust land). Section 122 of the 1972 Act conferred on principal councils (which included London boroughs) a general power of appropriation of land. A principal council had power under section 123(1) to dispose of land which it held by way of long lease in any manner it wished. In the case of land which consisted of or formed part of an open space, a principal council had to fulfil the requirements of section 123(2A) before it was in a position lawfully to dispose of such land under section 123(1). Conversely, having fulfilled those requirements, section 123(2B) made clear that a principal council was able to dispose of such land freed from any trust arising solely by virtue of the land being held in trust for the enjoyment of the public: R (on the application of Day) v Shropshire Council [2023] UKSC 8; [2023] EGLR 21; [2023] AC 955.
In the present case, the wide powers of disposal granted to the defendant by section 123(1) was not to be exercised otherwise than in accordance with the provisions of the 1967 Order. The defendant reached its decision to enter into the agreement for the proposed lease relying on its powers of disposal under section 123(1), and on the basis that it had properly fulfilled the requirements of section 123(2A). By virtue of article 20, the 1967 Order supplemented, sat alongside but did not exclude a London borough council’s power as a principal council to dispose of open space land by way of lease under section 123. The defendant’s exercise of that power was not affected by the saving provision in section 131(1)(b) of the 1972 Act, because the grant of the proposed lease for that purpose was in accordance with Part II of the 1967 Order, read as a whole: In R (on the application of Friends of Finsbury Park) v Haringey Borough Council [2017] EWCA Civ 1831; [2018] EGLR 3 applied. Blake v Hendon Corporation [1962] 1 QB 283 and R (on the application of Muir) v Wandsworth London Borough Council [2017] EWHC 1947 (Admin); [2017] PLSCS 162 considered.
(2) Section 123(2B) did not limit its effect to particular categories of land disposal, such as freehold sale. Sections 123(1), (2A) and (2B) expressly contemplated a principal council exercising its power under section 123(1) to dispose by way of lease of open space land which it held on public trust under section 164 of the 1875 Act. There was nothing in those statutory provisions to support the argument that such a disposal, if carried out in accordance with section 123(2A), did not result in the extinguishment of the public trust arising under section 164 of the 1875 Act. Section 123(2B) stated clearly that the land “by virtue of the disposal” should be freed from the public or statutory trust. Where the disposal was by way of lease, grant of the lease freed the open space land so disposed of from the public trust.
(3) Since the defendant had followed the special procedure enacted under section 123(2A) in advance of deciding to dispose of the land at the park by way of a 25-year lease, the potential for conflict between the proposed use of that land under the agreement and the land’s status as public trust land held by the defendant under section 164 of the 1875 Act was resolved by the clear words of section 123(2B). Upon the grant of the lease, the land would be freed from the statutory trusts arising by virtue of its being land held in trust for enjoyment by the public under section 164: British Transport Commission v Westmoreland County Council [1958] AC 126 and Western Power Distribution Investments Ltd v Cardiff City Council [2011] NPC 25 [2013] EWHC 1407 distinguished.
Accordingly, the court was satisfied that in resolving to dispose and to enter into the agreement, the defendant did not fail either to understand or to take account of the fact that granting the lease would be inconsistent with the statutory purpose for which it held the land. Nor did the defendant act unlawfully in deciding to grant a lease for purposes which were inconsistent with that statutory purpose.
(4) The effect in law of disposal of land at the park by way of lease was to free that land from the statutory trusts. The defendant was not subject to any fiduciary duty owed to the public arising by virtue of the statutory trust, because upon the grant of the lease that trust was extinguished. There were no residuary beneficiaries entitled if the purpose failed. The defendant was able to use the capital monies received in consideration of the leasehold disposal for purposes other than reinvestment in the remaining land at the park which the defendant held on the statutory trusts: Day v Shropshire Council considered.
Alex Goodman KC (instructed by Public Interest Law Centre) appeared for the claimant; Matt Hutchings KC (instructed by London Borough of Enfield Legal Services) appeared for the defendant; James Maurici KC and Joel Semakula (instructed by Richard Max and Co) appeared for the interested party.
Eileen O’Grady, barrister
