The Court of Appeal ruled today that a private nursery cannot open on Wandsworth Common, SW18.
The case provides important guidance to councils who wish to generate money from open spaces without unlawfully infringing on the rights of local residents, according to a leading planning barrister.
Nursery provider Smart Pre-Schools Ltd had sought a lease to use buildings on the common for a 62-place nursery.
The buildings were formerly used as a café and as accommodation for groundsmen. Wandsworth Borough Council approved Smart’s plans after putting the lease of the buildings out to tender.
The council received 10 expressions of interest, today’s judgment said, and Smart was the highest bidder.
One of the unsuccessful bidders was local resident Alexander Muir who proposed an educational and recreational facility that would be used mainly by local schools.
When Wandsworth approved Smart’s plans, Muir challenged the decision in a judicial review and won. The case was appealed, and today the Court of Appeal again found in Muir’s favour.
Muir’s case was that it was unlawful for the council to give a company a lease to use common land for a private business that wasn’t open to the general public.
In particular Muir’s legal team, working on the case pro bono, challenged the council’s power under the Open Spaces Act and Greater London Open Spaces Act of 1967.
The 1967 Act defined ‘open spaces’ as “any public park, heath, common, recreation ground, pleasure ground, garden, walk, ornamental enclosure, or disused burial ground under the control and management of a local authority.”
The Act allows the council to provide and maintain such spaces for various uses, including swimming baths, amusement fairs, rifle ranges and cafés.
However, any use should not “unfairly restrict the space available to the public for recreation in the open air in any open space.”
In a ruling in this case in July last year, High Court judge Mrs Justice Lang ruled that, overall, the Act gave the council the power “to provide and maintain recreational facilities for the public, ie pubic recreation”.
She ruled that a private nursery would not provide facilities for public recreation because: “Members of the public would not have a right of access to the premises, which would usually be limited to staff and up to 62 enrolled children in any one term, and visits by parents. Facilities would only be provided for the cohort of children enrolled in the nursery, not for children generally”.
Today, three judges at the Court of Appeal backed her ruling, and dismissed an appeal brought by the council.
“It’s a very important decision,” planning barrister David Matthias QC said in a telephone interview.
Matthias represented Muir in the High Court hearing.
“This is the only decided case in which a local authority purporting to act under the terms of the 1967 Act has been challenged successfully and prevented from doing so,” he said.
The judgments in the High Court and Court of Appeal give “important guidance” to “local authorities keen to generate income from open spaces in ways that are lawful, and for environmental groups and local residents anxious to ensure that any such income-generating activities by local authorities are kept strictly within lawful bounds,” he said.
Alexander Keay Muir v Wandsworth Borough Council; Smart Pre-Schools Ltd (interested party).
Court of Appeal (Patten LJ, Floyd LJ, Coulson LJ) 9 May 2018
