R (on the application of Muir) v Wandsworth London Borough Council

 Lease – Common land – Private nursery – Appellant local authority granting long lease of premises on common land to limited company to operate private nursery – Respondent applying for judicial review – High Court granting application – Appellant appealing — Whether company operating indoor facility for “recreation” – Whether limited company constituting “organisation” – Whether Order regulating open spaces permitting proposed use — Appeal dismissed The appellant local authority was the freehold owner of Wandsworth Common in the London Borough of Wandsworth. The land was common land. The appellant 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 Greater London Parks and Open Spaces Order 1967, scheduled to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967. The respondent, 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 appellant’s 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). The application was granted on the basis that the nursery did not constitute a facility for “recreation” within article 7(1)(a)(v) or (vi), which meant “public recreation”, and the interested party was not an “organisation” within the meaning of article 7(1)(a)(vi), as it was a profit-making business: see [2017] EWHC 1947 (Admin); [2017] PLSCS 162. The appellant appealed contending that the judge was wrong to hold that article 7 could not be relied on because the proposed nursery did not provide a facility for public recreation and that an organisation could not fall within article 7(1)(a)(vi) unless it was of a not-for-profit character. Held: The appeal was dismissed. (1) To come within article 7(1)(a)(v), the facilities had to be wholly or mainly for recreation. A facility which was wholly or mainly for recreation was not disqualified because some necessary ancillary activity would also be carried on there. Thus an indoor recreational facility for children did not become disqualified under sub-paragraph (v) because it was pointed out that children learned through play, and that the children were thereby being provided with a form of education. The purpose of the facility remained wholly or mainly recreational. It was not enough, however, that recreation occurred or might occur within the facility. So to construe article 7(1) would give the local authority free rein to provide any service to the public by means of an indoor facility in an open space provided they included a play area within the facility. Sub-paragraph (v) did not permit additional or different facilities which did not meet the description “recreation”. Therefore, the proposed facilities did not fall within sub-paragraph (v). The proposed facility was more in the nature of a school than a recreational facility. The judge was right to characterise the proposed facility as a combined nursery school and day nursery, and therefore an educational rather than a recreational facility. The proposed facility would offer services which were not a necessary or inherent part of recreation and which went far beyond it, by providing all-day child care for pre-school children while their parents were at work or engaged elsewhere. That was far in excess of anything required for recreation or even education. The contrary view, that the interested party’s proposed nursery school was a predominantly recreational facility with ancillary educational and child care facilities, was not a natural or appropriate way of describing what was proposed. It was driven by a desire to shoe-horn the proposed facility into the category of facilities defined in article 7(1)(a)(v). To do so would be inconsistent with the appellant’s own guidance, which accurately described a day nursery as providing child care and a nursery school as providing education. (2) The court was prepared to assume, without deciding, that article 7(1)(a)(vi) did not impose a hard-edged requirement that the organisation be not-for-profit. Nevertheless, the interested party was not the type of “club, society or organisation” with which sub-paragraph (vi) was concerned. It was common ground that the interested party was not a club or society. The term “organisation” in sub-paragraph (vi) was there to sweep up organisations which were not strictly or properly described as clubs or societies, but which nevertheless shared their principal characteristic of being run for the benefit of members sharing a common interest. The interested party did not operate on that basis, but was a limited company providing services for clients or customers. If the appellant’s construction were correct, it was difficult to see why the words “clubs” and “societies” were used in sub-paragraph (vi) when the words “any organisation” would have had the effect for which it contended. Accordingly, the proposed nursery would not fall within sub-paragraph (vi) either. Nigel Giffin QC (instructed by Sharpe Pritchard LLP) for the appellant; Victoria Wakefield (instructed through the Bar Pro Bono Unit) appeared for the respondent; 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