Local authority – Public park – Festival – Closure – Claimant applying for judicial review of defendants’ decision to hire out park for music festival – Whether defendants decision to close park being unlawful – Whether defendants failing to carry out proper consultation – Whether defendants wrongly failing to deal with application as key decision – Whether defendants failing to have regard to management plan as relevant consideration – Application dismissed
The defendant 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 claimant was a “friends” organisation for the park, recognised by the defendants.
The claimant applied to quash the defendants’ decision 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 claimant contended that: (i) the defendants’ decision to close part of the park for the purposes of the festival was unlawful; (ii) the defendants had failed to carry out a proper consultation as consultees had been denied access to the application, were not provided with sufficient information or time to make an adequate response and were positively misinformed about the proposal; (iii) the defendants had failed to deal with the application as a key decision and to record the decision and make the officer report, decision and background documents available; and (iv) the defendants had failed to have regard to a relevant consideration, i.e. its own management plan, and the number of persons attending the event exceeded the limits in that plan.
Held: The application was dismissed.
(1) Section 145 of the Local Government Act 1972, of itself and standing alone, provided the defendants with necessary power to permit the festival to take place in the park. There was an express power under section 145(2)(a) to “enclose or set apart” any part of a park. “Enclosing” an area in a park had to mean or entail closing it to the public, otherwise it would be an unnecessary provision. Subsections 2(b) and (c) made it clear that the power included closing the park in question to members of the public, save for those who paid admission. In any event, section 145(1) conferred on the defendants an express power to do anything that was necessary and expedient for the purposes of the provision of an entertainment of any nature. That included closing the park to the extent and for the time necessary to set up and take down the event infrastructure and to hold the event safely for the benefit of those members of the public who wished to buy tickets to attend it. The festival was an event that fell within section 145(1)(a) and (e).
(2) The court was satisfied that the consultation was adequate for its purpose. The claimant had failed to take into account the extent of the consultation which had taken place in the past. This was the third occasion on which the claimant had been consulted on the festival annual event. It was important to appreciate that the scope of the consultation was as to the holding of the festival as a matter of principle, not about operational maters of event planning or safety which were to be considered subsequently and would involve the claimant: R (on the application of Moseley) v Haringey London Borough Council [2014] 1 WLR 3947 and R v Brent London Borough Council, ex parte Gunning [1985] 84 LGR 168 applied.
(3) The defendants had correctly designated and treated the decision as a “none-key decision”. The fact that the income from the festival would help the defendants to meet their parks budget did not mean that the decision was a key decision or that, if the decision was made not to allow the festival it would be likely to result in any savings, far less significant savings.
The defendants accepted that the officer report should have been published five clear days before the decision was taken and it was not. However the decision had now been made available, along with the report, which contained the reasons for it. It was highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred. There was nothing in the decision or the report that would have led to any further representations by the claimant that would have made any substantial difference to the outcome.
(4) The defendants had not failed to have regard to their management plan which limited the size of events to 40,000. The defendants’ policy to which the plan expressly referred had been replaced in 2013 to bring it into line with the Licensing Act 2003 and set a maximum attendance limit of 49,999 as prescribed by the current premises licence. Even if there had been a failure to have proper regard to the 40,000 figure in the management plan, it was highly likely that the outcome for the claimant would not have been substantially different as there had been an attendance of 45,000 in 2014 and 2015 and the premises licence permitted a maximum attendance of 49,999.
Richard Harwood QC (instructed by Harrison Grant) appeared for the claimant; Philip Kolvin QC and Ranjit Bhose QC (instructed by Haringey London Borough Council Legal Services) appeared for the defendants; Robert McCracken QC and Juan Lopez (instructed by PBC Legal Solicitors, of Ascot) appeared for the interested parties.
Eileen O’Grady, barrister
