Lease – Common land – Private nursery – Defendant local authority granting long lease of premises on common land to limited company to operate private nursery – Claimant applying for judicial review – Whether proposed facility falling outside Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 – Whether facility for “public or recreational use” – Application granted
The defendant local authority was the freehold owner of Wandsworth Common in the London Borough of Wandsworth. The land was common land. The defendants granted a long lease of premises known as Neal’s Farm Lodge and Cottage situated on the Common to the interested party for use as a private children’s nursery for up to 62 pre-school children aged 2 to 5 years. As the premises were situated on the Common, they 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 claimant, who had proposed an educational and recreational facility for use by local maintained schools, applied for judicial review of the decision to grant the lease. He contended, amongst other things, that: (i) the provision of child care at a private nursery run by a private company, which had exclusive use of the premises and could restrict entry to members of the public, fell outside the scope of the 1967 Order as it was not a facility for public recreation and use; and (ii) the proposed nursery use fell outside the meaning of the term “recreation” as used in the heading to article 7 (“Facilities for public recreation”) and in article 7(1)(a)(v) and (vi) of the Order, contrary to the defendants’ argument that the proposed use came within the scope of article 7(1)(a), either as an indoor facility for recreation under article 7(1)(a)(v) or as a centre or other facility for an organisation whose objects or activities were of a recreational or educational character, under article 7(1)(a)(vi).
Held: The application was granted.
(1) The decision to grant the lease to the interested party was not a lawful exercise of the defendants’ powers under the 1967 Order. The headings to article 7 to 9 of the Order, with their emphasis on public recreation and public rights, indicated that the overall purpose and scope of articles 7 and 8 was to enable the local authority to provide and maintain recreational facilities for the public, i.e. “public recreation”. The defendants’ proposal to let the premises to a private company to operate a private fee-paying nursery meant members of the public would not have a right of access to the premises, and it would not provide them with any facilities. The interested party would control access to the premises, which would usually be limited to its staff and up to 62 enrolled children in any one term, and visits by parents. The grant of the lease to the interested party for 15 years would prevent any public use of the premises for a significant period of time. That restriction on public access and use was contrary to the statutory trust arising under section 10 of the Open Spaces Act 1906, under which the common was held on trust for the use and enjoyment of all the local inhabitants. Article 11 of the 1967 Order, which allowed the exercise of powers under articles 7 to 10 notwithstanding the provisions of the 1906 Act, did not avail the defendants because the restrictions on access and use would also be contrary to the intended purpose and scope of articles 7 and 8, which was to provide facilities for “public recreation”. The proposed nursery would not provide such facilities for public recreation.
(2) The term “recreation” was not defined in the 1967 Order, save for the limited purposes of article 13 (competitions and prizes), where it was defined as “any activity for which a local authority have power to provide facilities in an open space”. Previous interpretations and illustrations of “recreational use” for the purpose of the law of commons and greens were consistent with the dictionary definition of recreation as a means of refreshing or enlivening the mind or spirits by some pleasant occupation, pastime or amusement: see, for example, Forestry Commission v Secretary of State for Communities and Local Government [2015] EWHC 1848 (Admin).
The interested party’s facility was a combined nursery school and day nursery. However, the provision of child care in a nursery setting did not come within the meaning of recreation. The fact that children would play in the course of their day at the nursery did not mean that the nursery could be properly described as a facility for recreation. That was not its main purpose. Furthermore, on a proper interpretation, article 7(1)(a)(vi) of the Order was intended to provide centres and facilities for non profit-making groups which shared a common interest, not limited companies who were operating a profit-making business. It excluded a commercial organisation such as the interested party. In the circumstances, the proposed use did not come within article 7(1)(a)(v) or (vi).
David Matthias QC (instructed by Direct Access) appeared for the claimant; Ranjit Bhose QC (instructed by Sharpe Pritchard LLP) appeared for the defendants; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Muir) v Wandsworth London Borough Council
