Local authority – Provision of entertainment – Public park – Closure – Appellant applying for judicial review of respondents’ decision to hire out park for music festival – High Court dismissing application – Appellant appealing – Whether respondents having power to hire part of park for festivals under section 145 of the section 145 of the Local Government Act 1972 – Appeal dismissed
The respondent local authority owned Finsbury Park, a 115-acre public park adjacent to the London Boroughs of Hackney and Islington. The park had played host to large-scale events, including commercial concerts, attended by tens of thousands of people, for many years. The appellant was a “friends” organisation for the park, recognised by the respondents.
The appellant applied to quash the respondents’ decision to grant an application to hire out the park to the first interested party for the Wireless festival on 8-10 July 2016. The festival was promoted by the second interested party which held a premises licence granted under the Licensing Act 2003. The festival had been held in the park in 2014 and 2015 with an attendance of 45,000 each year. The appellant had objected to the application not only on its merits but also contending that the respondents did not have power to authorise such an event. The Planning Court dismissed the application: [2016] EWHC 1454 (Admin); [2016] PLSCS 179.
The appellant appealed, supported by the Open Spaces Society as intervenor. It was common ground that the respondents did not have power to hire out part of the park for the festival under either section 44 of the Public Health Acts Amendment Act 1890 (because of temporal restrictions in that Act) or article 7 of the Schedule to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 (because of spatial restrictions in that Act). The issue was whether they had such a power under section 145 of the Local Government Act 1972 which gave local authorities the power to “enclose or set apart” any part of a park for the provision of entertainments.
Held: The appeal was dismissed.
(1) As a matter of ordinary language, “enclosing” an area of land necessarily connoted putting some form of barrier round the whole of that area, with a view to preventing access to and/or egress from it. In its full context, Parliament intended section 145 to give a power to the relevant local authority to exclude members of the public, e.g. those who did not have a ticket and have not paid, from that part.
(2) The 1967 Act, and the provisional Order that preceded it, were adopted after the local government reorganisation in London, expressly to secure “uniformity in the law applicable with respect to parks and open spaces”. There was nothing to suggest that it was intended to effect any radical change. It was also noteworthy that section 145(3) of the 1972 Act expressly retained private covenants and conditions upon which a gift of a public park had been made; but remained silent about the rights of the public to enjoy the park and the proviso (ii) in article 7(1) of the 1967 Act. The 1972 Act was the later statute and section 145 applied to all local authorities, which included all 32 London borough councils (section 270). It was especially clear that the draftsman intended section 145 to apply to London because section 145(5) expressly included the City of London within its scope. It was clear that, where the draftsman intended to exclude London, he did so, as in the immediately previous section (see section 144(3)). Section 145 also expressly included the power to enclose (and, hence, restrict general public access to) any part of a park or pleasure ground. It was clear that it was intended to give power to enclose any part of a park in London for the purposes of an entertainment of any nature, which included music festivals.
(3) The 1890 Act provided a specific power to close a public park or pleasure ground for a limited number of days for any charitable or other public purpose. It was not suggested that that was a special provision which trumped the general power in the 1972 Act. In respect of the 1967 Act and the 1972 Act, article 7 and section 145 were stand-alone provisions, creating different powers for different places subject to different limitations. The 1972 Act was restricted in its scope to parks and pleasure grounds; whilst the 1967 Act applied to “open space” which was defined much more widely to include, not only those, but also heaths, commons, walks, and disused burial grounds. The 1972 Act was specifically focused on “entertainment” of a performing kind; while the 1967 Act had within its scope a much wider variety of facilities for public entertainment, including swimming baths, golf courses, gymnasia, swings and other such apparatus, and centres and facilities for clubs and other organisations. The whole focus of those statutes was different. They were simply separate and distinct powers, subject to different criteria and restrictions. Section 145 provided the respondents power to enclose part of the park for the purposes of events such as the Wireless Festival, entirely distinct and separate from the power in article 7, such that they could, in any particular circumstances, exercise either power they chose. The power under section 44 of the 1890 Act was, likewise, distinct.
Richard Harwood QC (instructed by Harrison Grant) appeared for the appellant; Philip Kolvin QC and Ranjit Bhose QC (instructed by Haringey London Borough Council Legal Services) appeared for the respondents; Robert McCracken QC and Juan Lopez (instructed by PBC Licensing Solicitors, of Ascot) appeared for the interested parties; George Laurence QC and Ross Crail (instructed by Richard Buxton Environmental and Public Law) appeared for the intervenor.
Eileen O’Grady, barrister
To read a transcript of R (on the application of The Friends of Finsbury Park) v Haringey London Borough Council, click here
