Maries, R (On the Application Of) v London Borough of Merton

These proceedings for judicial review were commenced on the 21^st February 2014. Permission was granted by Lang J on 3^rd April 2014.

The Claimant is the Chair of a local group of fellow residents of the defendant borough, known as Protect Dundonald Rec (PDR). She has told the court that the group was formed in April 2011 by local residents and users of the Dundonald Recreation Ground (DRG) to oppose building on the Recreation Ground.

Any emphasis in this judgment in the exposition of any statutory provision or material citation of evidence, is that of the court unless otherwise indicated.

The claim concerns the exercise by the defendant local authority of its powers of ‘appropriation of land’ under section 122(1) of the Local Government Act 1972. Section 122 is contained in Part V11 of the Act headed ‘Miscellaneous Powers of Local Authorities’. It is to be found in a sequence of statutory provisions governing a local authority’s powers to enter into land transactions, headed ‘Land transactions – principal councils’. It immediately follows two sections concerning the acquisition of land (sections 120 concerning acquisition by agreement, and section 121 concerning compulsory acquisition). It precedes section 123 concerning the disposal of land. Its origins in predecessor legislation go back to a statutory modification of an original parliamentary standpoint that it was wrong for land to be retained for some other purpose when the authority no longer needed it for the purpose for which it had been acquired, at least if so compulsorily acquired, and that in such a situation it should be disposed of.

Section 122 thus contemplates the situation where a local authority wishes to use land for purposes different from that for which it was originally acquired, or for which it is currently held. It uses the concept of an ‘appropriation’ for such new purposes. Subsection (1) allows the land to be appropriated for any such new purpose so long as that purpose is one for which the council are statutorily authorised by statute to acquire land, but subject to two requirements. First the land must already belong to the Council. Secondly and critically for present purposes, the land must no longer be required for the purposes for which it is currently held.

Thus section 122(1) provides:

Where as in this case, the land in question forms part of ‘an open space’, a further precondition is the giving of prior public notice of the proposed appropriation by newspaper advertisement and the giving of consideration to any objections. See subsection (2A) of s.122.

Once appropriated however any such open space land is freed from any trust under which it was hitherto held for the enjoyment of the public by virtue of s 164 of the Public Health Act 1875 (pleasure grounds) or section 10 of the Open Spaces Act 1906) (duty of a local authority to maintain open spaces and burial ground). See subsection (2B) of section 122.

Dundonald Recreation Ground is an open public space of some 48,000 square metres in a built up area within the defendant borough. It was acquired by the defendant’s predecessor (the Local Board for the District of Wimbledon) from Messrs James and John Innes by an Indenture dated the 16^th December 1893, to ‘hold … unto and to the use of the Board their successors and assigns as a Public Pleasure Ground’. Under the terms of the Indenture the land was made subject to the burden of a restrictive covenant that it ‘shall ever be used as a public pleasure ground and that no building or other erection not reasonably required for use in connection with a pleasure ground shall at any time be erected.’

The acquisition was pursuant to the provisions of section 164 of the Public Health Act 1875 which provides as far as is material:

It is common ground that the land has since been held by the local authority, and therefore the defendant, on trust for enjoyment of the public for the purpose for which it was thus acquired under the 1875 Act, i.e. as a public pleasure ground, notwithstanding that the 1875 Act (unlike the Open Spaces Act 1906, in section 10, in relation to open spaces acquired under that Act) does not expressly provide for such trust. In support of this proposition I was referred to the decision of Kennedy J. in Darlington Borough Council ex parte Indescon Ltd [1990] 1 EGLR 270 dealing with analogous duties of a local authority under section 123(2) of the Local Government Act 1971.

The regulation of the public use of such public pleasure ground has hitherto been by way of byelaws made by the defendant or its predecessors under section 164 of the 1875 Act and under section 15 of the Open Spaces Act 1906, applicable by virtue of section 12 of that Act notwithstanding the land was not itself acquired under that Act.

Thus, as to the 1875 Act, section 164 provides as far as material:

And as to the 1906 Act, section 15 provides as far as is material:

The current applicable byelaws of the defendant (made under both the 1875 and 1906 Acts) are those of September 1992. The Dundonald Recreation Ground is listed in Schedule 1 as one of a number of ‘Grounds Regulated Under Section 164 of the Public Health Act 1875’.

They allow for the local authority to set opening and closing times (see byelaw 3).

They allow, by byelaws 13 and 14, for the council to set apart by a displayed notice displayed in the ground, an area of the Ground for the purpose of the playing of a specific game, which requires exclusive use of that part for the duration of the game, to the exclusion of any other activity, and except where exclusive use of such an area has been granted for the playing of a particular match, members of the public are entitled to use a set aside area for the playing of such game, on a ‘first come first served basis’ to the exclusion of others but with a limit of two hours continuous use if any other player or players make known their wish to use the space. This is the effect of byelaws 13 and 14. The penalty for any person offending them is that of removal from ‘the pleasure ground’ (byelaw 22).

It was also common ground before me that these byelaws do not themselves empower the council to grant, for example by licence, a defined person or group of persons or any other organisation exclusive use of or exclusive third party rights over any given area to the exclusion of others and enforceable against such others.

Nor did I understand it to be in dispute that if the council were to discontinue the setting aside of a particular area, that part would simply revert to being part of the general pleasure ground accessible to members of the public to the same extent as any other part.

The Defendant has embarked upon a major school project, which encroaches upon the recreational ground to enlarge the adjacent primary school, the Dundonald Primary School, by extending the school buildings onto part of the Recreational Ground together with some external space and to replace an existing pavilion and existing recreational/sports facilities with a new set of tennis courts/multi games area which are to become shared facilities that is to say shared as between the school and the public with the school by Licence to have exclusive use (at least in respect of the tennis courts/multi games area) at set times during school hours.

These proceedings for judicial review challenge the lawfulness of the defendant’s decision (by Resolution of its Cabinet Committee of elected members) of the 9^th December 2013 pursuant to section 122 (1) of the Local Government Act 1972 (the 1972 Act) that an identified part (a total of some 2,578 square metres) of the Dundonald Recreation Ground was no longer required for the purposes for which it was currently held and to appropriate it (‘may be used instead’) for three identified purposes ‘to allow for the enlargement’ of the adjacent state primary school (the Dundonald Primary School) (‘the School’) for which the defendant is the material local educational authority.

Those three identified ‘instead’ purposes identified in the Resolution were as follows:

The defendant’s advertised newspaper Notice of October 2013 under subsection (2A) of section 122 giving advance notice of its intention to appropriate the land and inviting objections to be made to it for its consideration, described the land to be appropriated as being ‘an area of and forming part of the Dundonald Recreation Ground’ which ‘includes land used as an open space’. It described the defendant’s intention as being one ‘to appropriate’ the identified land ‘for the purposes of the enlargement of (the Primary School)’ and for ‘additional facilities for the sole or shared benefit of that school’.

The Schedule to the Notice described the land to be appropriated in these terms:

The adoption of the appropriation procedure has been one of number of steps undertaken by the defendant to further its school expansion plan. Other steps have included the obtaining from itself as the local planning authority planning permission to carry out the intended works. That permission was granted on the 27^th November 2013. Another step has been the taking of proceedings in the Upper Tribunal under section 84 of the Law of Property Act 1925 to obtain the necessary modification of the existing restrictive covenant.

This expansion plan is said to be necessitated to meet the urgent need for additional school places in the school in question. To quote Mr Proctor, a local government Service Manager officer in the defendant’s Children Schools and Families department:

I should say at once that the claimant has put in evidence seeking to challenge this asserted need for additional places at the Dundonald School. It is said that the defendant has conflated ‘need’ with ‘demand’ which is a very different concept. Reference was made at the beginning of the hearing to advertising material relating to a new state funded primary ‘free’ school in the area offering 60 places for September 2014. Whether however this is a relevant issue for the court to determine for present purposes is a matter to which I shall have to return.

It is to be noted that the Cabinet at its meeting on the 9^th December 2013 not only passed the resolution now under challenge in these proceedings relating to appropriation but also passed a resolution authorising the expansion of the school. That resolution is not however a matter of challenge before this court.

The grant of planning permission was subject amongst other conditions to the ‘completion of a Legal Agreement between (the Defendant) the (School) and Sport England which secures the detail of the draft Community Use Agreement (dated 11^th January 2013) in respect of the MUGA (Multi – Use Games Area ) and Pavilion’.

Pursuant to that condition, the Defendant on the 28^th November 2013 made a Deed of Unilateral Undertaking which included the following:

Paragraph 2.3 of the Deed provided that nothing in the Deed should confer any rights on third parties ‘save that Sport England shall have the right to enforce the obligations in this Deed against the Owner’.

In the light of this unilateral undertaking, Sport England then removed its existing objection to the planning application being (to quote its email to the defendant of 28^th November 2013) that ‘a robust legal mechanism is in place which secure the provisions set out within the Community Use Agreement (draft 27 November 2013)’.

That Community Use Agreement (CUA) has now been entered into by the defendant with the Governing body of the School. The copy in my papers is dated the 18^th December 2013 although by an email dated 3^rd March 2014 to the Dundonald Rec Tennis Club the defendant (through one Chris Lee) indicated that the agreement had only been adopted from that date. The email was in these terms:

Further to complete the new arrangements facilitated by the appropriation the defendant in consideration of a Fee, granted a Licence dated 11^th March 2014 to the School (by its Governing Body) granting the School defined exclusive use hours over the Multi Sports Use Area (for present purposes this means the tennis courts).

It can be seen that the amount of the Recreation Ground subject to appropriation is some 5% of the total but it is emphasised on behalf of the defendant that under the arrangements to be put in place post appropriation in reality only some 1% is being permanently lost to the public and even less has been lost as external open space compared with the pre-appropriation position. Only part of the appropriated land (some 579 metres) is now to be used for the building of a school extension and playground to be transferred to and become part of the school premises. Other parts of the land have been appropriated for uses which are claimed by the council to be an improvement to the existing public recreational facilities including a new sports pavilion with changing facilities and increased number of tennis courts as part of a new multi - use sports area but with these latter facilities becoming formally shared facilities, that is to say shared as between the public and the school with the school being granted by Licence from the defendant exclusive rights of use during stated school hours (enforceable against other would be users from the locality). Under the defendant’s plans the tennis courts and children public playground will be moved to the area of what the council describe as the ‘former’ bowling green area and it is said that the net effect is that very little open space is being lost to the public completely and the building footprint on the recreation ground will be no greater than that which is currently there. The defendant further claims that the new regime of formally shared facilities between school and the public does no more than formalise current practice as far as the use of the tennis courts are concerned, while the loss of the bowling green facility is of little consequence to the community given, the defendant would say, the absence of any credible evidence of sustained local interest by residents in the bowling facility.

The officer’s report in its opening section headed ‘Purpose of report and Executive Summary’ put the matter to the Cabinet in this way (again any emphasis is the emphasis of this court):

Mr Rutledge QC on behalf of the defendant himself described the ‘appropriation’ in this case as an ‘unusual one’ in that only a small part of it (that devoted to the first identified purpose (the School)) is to be lost completely to the users of the recreational ground. There is here, as he put it, an ‘overlap’ situation since although the effect of the appropriation is to remove the appropriated land from the legal regime by which (together with the remainder of the recreation ground) it has hitherto been governed (in particular the Acts of 1875 and 1906, the trust for the purposes of a public pleasure ground and the byelaws made pursuant to statute) the effect of the appropriation for the second and third identified purposes (the pavilion; the tennis courts/multi use sports area) is, as he put it, to ‘return’ the appropriated land therein identified to public/local community use albeit under a new legal regime, namely that provided for in the Community Use Agreement which gave the School exclusive use of the tennis courts during identified set school hours but ‘guaranteed’ access to the public to the courts outside those hours, and under which the Pavilion was to be made available for Community Use. The land under purposes two and three remained ‘under the control of the Greenspaces Team’.

Mr Rutledge described the ultimate result of the appropriation as one in which ‘nobody loses out’.Toquote his written submission at paragraph 23:

The Officers’ Report itself devoted many paragraphs to an overview of the current public use of the recreational facilities on the land to be appropriated for purposes two and three, and the extent to which the new proposals were or were not an enhancement on the existing arrangements/usage. The report rehearsed the effect of the objections to the proposals including the dispute as to what the current usage amounted to, before giving the officers’ comments on the consultation responses by reference, for example to the tennis courts, the bowling green (which was to be lost completely) and the pavilion. I deal with the officers’ comments on the bowling green below (see under pre-appropriation use). As to the tennis courts, the officers’ recommendations on the proposals were positive. This in particular appears at 2.13 to 2.15:

It is nonetheless to be noted that the new legal regime governing the appropriated land, even in respect of that ‘returned’ to public access in the way described by Mr Rutledge, is very different from the previous one under the Public Health and Open Spaces legislation. It is unnecessary for me to refer to the exact terms of the Community Use Agreement (CUA) save to record that although by its Recital it records amongst other things (at 1.2) ‘that the parties wish to enter into the agreement in order to make Multi Use Sports Area (MUGA) at (DRC) available to the School for their use and the local community’, and under clause 4 ‘the Council agrees to make the (MUGA) available for school and Community Use in accordance with Schedule 2 … and the Pavilion available for Community Use’, the CUA (as emphasised by Mr Wolfe QC on behalf of the Claimant) does not give rights to the public at large, the only parties to it are the defendant Council and the School (by its Governing Body), under clause 11 it can be varied by those parties, and the effect of clause 8 is that the CUA can be terminated independently of the continuation of the sports facilities/planning permission albeit such a course would require the consent also of Sport England (‘8. This agreement shall operate for so long as all of the Sports facilities are provided in accordance with the Planning permission or until terminated or varied with the consent of all parties to this Agreement and Sport England’). The claimant herself summarises the overall effect of these limitations on any public right as being one which must put future access to the ‘returned’ appropriated land at risk.

The point is also made throughout on behalf of the claimant that it is not accepted that the defined hours of School use and those of Public use reflect that which hitherto has been the current practice as to tennis court use (as to which see further under pre-appropriation use), that the new regime does not operate on a ‘first come first served’ basis as under the ‘set aside’ byelaws, and moreover the CUA provides for the introduction of charges.

These points in response were all made by Mr Wolfe to counter the ‘nobody loses out argument’ although as shall be seen, he had a more fundamental submission to make, namely that this argument demonstrated a fundamentally flawed approach by the defendant to the statutory question raised by section 122, namely whether the land in question was no longer required for the purpose for which it was originally acquired/currently held. Mr Wolfe would say that the defendant’s own reasoning justifying the appropriation demonstrates that the land (at least that identified for the second and third purposes) was still required for its current recreational purposes. ‘Trumpeting the extent to which the current uses will be maintained is a contradiction of the determination that the land in question was no longer required for its current purpose’.

This is a submission to which I shall return.

As already indicated, the appropriated land in its use pre-appropriation included an area set aside by the defendant under the byelaws already referred to, as a public bowling green and a further area set aside for two public tennis courts. It also included a Pavilion with changing facilities.

There is as already indicated, a dispute between the defendant, supported by the evidence of the current Headmistress of the school (a Miss Fiona Duffy), and the claimant, supported by, amongst others, local resident witnesses associated with the current local tennis club, as to the extent to which the tennis courts were as a matter of practice already being used within school hours exclusively (in the sense of ‘as a matter of fact’ as distinct from ‘pursuant to any legal right good against the rest of the world’) by the School. As to the resolution of this dispute, the defendant through its officers and in its Grounds of Resistance to the present claim has consistently asserted that ‘because the Council does not take formal bookings for tennis courts there is no formal means for recording actual usage’ (cited in the Officer’s Additional Information for Cabinet on the appropriation Agenda item before Cabinet on the 9^th December). Further, the defendant had at some stage pre-appropriation put up (the claimant says not until on or about 24^th June 2013, the defendant says much earlier) a sign stating that the courts were ‘only available to the public outside of school operating hours’ although Mr Rutledge conceded before me that such a sign could not be the source of any legal power in the defendant under the current (that is to say pre-appropriation) legal framework governing its ownership and regulation of the Recreation Ground to grant any exclusive rights to the School to use the courts good against other users of the DRG.

As to the Bowling Green, the defendant on the evidence before me, in particular that of Mr Proctor, had discontinued the maintenance of the Green in September 2012 on the grounds of the lack of any sustained public interest in the facility, it being said that the local bowling club who were users of the area as that date had only some 13 members, although it is questionable whether this amounted to any formal abandonment of the setting aside of the area for a specific game. In this context I quote from paragraph 2.16 of the Officers’ Report to and before the defendant’s Cabinet on the 9^th December:

The evidential basis for this assessment of the level of current local public interest pre-appropriation in the set aside bowling green area has again been a matter of dispute in the evidence put before me by on the one hand the defendant (relying on the evidence of its officers) and on the other by the claimant (relying on both her own evidence and the evidence of local residents with an interest in bowling).

Further, the defendant had pre-appropriation put up a sign stating that ‘the bowling facility at Dundonald Recreation Ground has now closed’ and ‘any use of the Green for bowling is not permitted’ and had allegedly taken steps to lock the gates to the area of the Green. I say ‘allegedly’ since the extent to which all access gates to the area were locked is in dispute, the defendant maintaining that there always has been at least one open gate giving access to the site.

There was listed before me to be heard immediately after the present claim a rolled up hearing of another judicial review claim (CO/13876/2013) brought by the present claimant challenging the lawfulness under the byelaws of these actions by the defendant purportedly excluding members of the public from the tennis courts within school hours and from the site of the bowling green. In a judgment of the 28^th March 2014 directing such a hearing, Lang J ruled that as to the bowling green, although she agreed with the defendant that under the discretion confirmed under the Byelaws, in particular byelaw 13, it was entitled to discontinue maintaining the bowling green facility, it was arguable that the Byelaws did not permit the permanent locking up of the site of the bowling green, it being arguable that pre-appropriation the site was either for general public use in accordance with the public purpose for which the land was then held, including informal bowling, (which the claimant’s evidence has sought to demonstrate continued apace since September 2012) or was to be set aside for a specific sport or other use pursuant to the Byelaws. And as to the tennis courts, Lang J. ruled that it was arguable the Byelaws did not empower the defendant to exclude the public from such facilities for the lengthy periods currently envisaged, namely excluding the public from the tennis courts for the majority of the school day.

The reason however Lang J. did not immediately grant permission in that particular claim was because based as it was solely on the Bylaws and the events of summer 2013, that claim had been overtaken by subsequent events, namely the appropriation decision currently under challenge in the present proceedings, under which the relevant parts of the recreation ground had been removed from the scope of the Byelaws. As Lang J put it at paragraph 19 of her Judgment, by its resolution of the 9^th December 2013, ‘the Defendant … resolved to appropriate that part of the recreation ground previously held for recreation purposes to become land for educational purposes’.

The parties before me have readily conceded the wisdom of Lang J.’s ruling in this regard. The claimant concedes that if the present challenge to the appropriation fails, the Byelaws claim becomes entirely academic.

Before turning to the grounds of challenge I must refer to the decision in Dowty.

I accept that the decision of the Court of Appeal in Dowty Ltd v Wolverhampton Corporation [1976] 1 Ch 13 is still the leading authority on the interpretation and approach to section 122(1) and any challenge to any determination that land is no longer required for its original/current purpose - albeit Dowty was decided under an analogous provision in a predecessor statute (s 163 of the Local Government Act 1933).

Dowty concerned land originally acquired and currently held by the corporation for the purposes of a municipal aerodrome. The plaintiffs occupied adjoining land for the purposes of their business which was originally that of manufacturing aircraft and aircraft parts. The plaintiffs had acquired their land in 1935 from the corporation under a 99 year lease under which they acquired the contractual right as against the corporation to use the aerodrome for flights for the purposes of their business. The plaintiffs would use it for aircraft testing. By 1971 the plaintiffs has ceased manufacturing aircraft, their business was confined to manufacturing parts and their use of the airfield had become minimal and was confined to executive flights. The corporation decided that a municipal aerodrome was no longer needed in the area and the land was needed for housing. The proceedings were a challenge by the plaintiffs to the defendant’s resolution to appropriate the land for planning purposes, their argument being that it could not be said that the airfield was not required for use as an airfield having regard to their contractual rights and that no local authority on the facts could reasonably form the view that the land was not required for airfield purposes; that if the question was whether the corporation required the land for the airfield purpose, they did so require it in order to give effect to their obligation to the plaintiffs; the airfield purpose could not be said to be spent; (see summary of argument by Russell LJ at 22H – 23C).

I observe that the Argument on behalf of the defendant corporation presented by Jeremiah Harman QC (as he then was) is reported (at paragraph 18H to 19C) as including the submissions that ‘required’ in the section meant either ‘needed’ or ‘wanted’ and in this context it meant ‘wanted’; that where there were conflicting requirements for the use of land, the local authority had to make a bona fide decision whether the land was needed for its present use and whether it was needed for another purpose of the local authority; that where there were two competing needs which were both socially and publicly desirable, it was for the local authority, not a judge and jury, to decide the use to be made of the land. Subject to acting bona fide and considering relevant facts, it was the opinion of the local authority based on those facts which were relevant and the court should not interfere; the plaintiffs’ contract was merely a material fact to be taken into consideration by the defendants in deciding whether there was still a need for an airfield; that the need to be considered was that of the defendants and not for the plaintiffs.

The plaintiffs in Dowty relied heavily on a decision of Maugham J. in AG. v. Manchester Corporation [1931] 1 Ch.254 concerning a like appropriation provision in earlier predecessor legislation (s 96 of the Public Health (Amendment) Act 1907). The land in question had been acquired for street improvements and the corporation purported to appropriate it for the purpose of a tuberculosis dispensary; the question arose whether the site could be said to be not required for which it had been acquired. As highlighted by the judgment of Russell LJ in Dowty(at 25A-26), Maugham J in Manchesterhad said (at p 289):

It is clear that both Russell LJ and Lawton LJ accepted the correctness of the approach of Maugham. In the judgment of Russell LJ the following passage appears (at 26B - F):

Buckley LJ expressed his judgment thus at 29 G – 31A:

I agree with Mr Rutledge in these proceedings that 3 material principles may be distilled from these Dowty judgments (although I have recast them and altered the order in which he placed them):

Mr Wolfe did not dispute this distillation of principle, in so far as it embraced the concept of a balancing exercise as to comparative needs. His primary point was that any balancing exercise had correctly to identify the purpose for which the land proposed to be appropriated was currently held and had to consider the comparative need for the land to be held for that purpose. The statutory question for the local authority to consider was whether the land was no longer needed to be held in the public interest of the locality for that identified purpose.

Nor did Mr Wolfe dispute that the determination of that statutory question was not a matter for this court subject to Wednesbury principles. For the purposes of this challenge he relied upon the well known exposition of those principles by Lord Diplock in Tameside (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014 ) at p.1065A - C:

The core complaint made in this case is that the Cabinet failed to ask itself the correct statutory question, that the purpose for which the land in question was currently held was not a purpose to be defined by the current ‘set aside’ sporting uses (the tennis courts, the bowling green, etc) upon which it is said the Officers report and the considerations of the Cabinet concentrated, but the purpose for which it had been conveyed to the Council back in 1893, being the purpose authorised under section 164 of the 1875 Act (the Public Heath Act), namely that of ‘being used as a public pleasure ground’ ( PPG). This current purpose was also characterised before me by Mr Rutledge as being that of ‘public open space’. It is to be noted that the section 122(2A) Notice referred to the land to be appropriated as land which ‘includes land used as an open space’. It is said further that had the defendant through its Officers and Cabinet addressed the question of whether the land in question was no longer required for these purposes, this would have required an evaluation of the potential impact of the loss of open space which the appropriation entailed, on the local community which in turn would have required an evaluation of the extent to which the local community was well provided or not with PPG/open space which was never undertaken. In her second witness statement to the court the claimant says for example (at paragraph 54):

A secondary two pronged ground of challenge developed before me is that in so far as it was appropriate to focus upon the current set aside uses (the public use of the tennis courts/bowling green) and to consider the impact of the proposed appropriation upon such use, the decision making of the defendant was flawed in deciding whether the land was no longer required for these uses in that (i) the true extent of current use was a matter in dispute (as the Additional Information Report to Cabinet itself recognised there was a disagreement about the extent to which the school was currently using the tennis courts and the extent to which members of the public had had access to them or sought to have access to them) and it is said it was incumbent upon the defendant to resolve that dispute by a proper survey; and (ii) in any event the “trumpeting” by the defendant that the arrangements after appropriation would mean that public access to the sporting facilities in question would be maintained if not improved, contradicted any conclusion that the land was no longer required for such recreational uses/purposes. This argument is further developed in the grounds by reference to the emphasis placed by the defendant on the continuing role by way of control of the Greenspace Team in respect of the most of the appropriation land, and to the intended public use to which post appropriation the pavilion was to be put. Thus at paragraphs 31 and 32 of the Grounds:

I have carefully considered these arguments. At first blush I was attracted to them but on closer analysis I have been unable to accept them.

My reasoning is as follows.

First I cannot accept that the Advice given by the Officers to Cabinet as to the approach to be adopted under section 122 was itself flawed.

The Officers report fairly (at 2.31) identified and summarised the claimant’s primary objection to the approach of the defendant, namely that the 1972 Act did not allow for an evaluation of whether land was ‘more’ required for something else and there was no statutory provision allowing the defendant to consider whether an alternative use was ‘more in the public interest’ than ‘the proven existing use’. Thus at 2.31 this appears (rehearsing the claimant’s responses) (again the emphasis is that of this court):

The officers then advise the Cabinet in the following terms.

They set out the exact wording of section 122 (at 2.34).

At 2.35 the statutory preconditions for the exercise of the power of appropriation are accurately set out:

It is common ground that it was and is only the second of those conditions which was in issue before the Cabinet.

The Cabinet’s attention was then drawn to the decision inDowty:

The Cabinet were then advised in these terms:

Although Mr Wolfe criticises this particular passage as being contrary to the statutory provision in not identifying the public pleasure ground/public open space as the underlying purpose for which the land being appropriated for uses two and three (the pavilion/the tennis courts) was currently held, and hence – so it is argued - the statutory question whether it was no longer required for such ‘PPG/Open Space’ purposes was never asked, let alone addressed by Cabinet, I do not on reflection consider such criticism to be valid.

First this passage has to be read in the context of the entirety of the Advice given by the Officers in particular at 2.41 onwards (under the heading Concluding officers’ comments) where (at 2.44) where the ‘open space’ purpose is expressly referred to. Thus:

I cannot accept that the Cabinet were not fully aware from these passages (and indeed from the many representations summarised to them) that the ongoing use of the land in question as open space was what was in issue in the decision they had to make, as well as the ongoing current uses of the land as set aside for sporting facilities. I note for example from the Transcript that Mr Ballat, Officer, Head of Commissioning Strategy and Performance, is recorded as saying that amongst other things the Cabinet had to assure itself ‘... the land is no longer required for open space or leisure use’.

It was not however surprising that the Report and the Cabinet members in their observations concentrated upon the effect of the proposals on public access to sporting facilities compared to current access under the ‘set aside’ arrangements since that was the topic on which so many of the objections concentrated and it had never been contemplated that all the sporting facilities in question should be abandoned altogether so as to return the material land to actual open space, but on analysis I can find nothing in the material before me that Cabinet, on Officers’ Advice, were not fully aware that the effect of the appropriation would be to remove the land in question from ‘Open Space’ purposes, albeit as a matter of fact only a very small proportion of the appropriated land represented a loss to the public of external open space, compared with the pre-appropriation position. Again it is noteworthy that Mr Ballatt according to the Transcript spoke of the proposal depending upon: ‘the appropriation of a small area of Dundonald recreation ground, transferring that use from open space leisure use to educational use’. Linda Kirby Cabinet member described herself, again according to the Transcript, as some one who was ‘a passionate … maintaining open space’ but ‘having gone through everything we’ve gone through I feel this is a pretty fair situation … it will certainly help us expand the school …’ The Chair (Mr Alambritis) says: ‘I’m mindful that this land is owned by the Council, its not required for open space and the telling reason for me going ahead with the appropriation is that it will, as Councillor Judge said, increase access for all.’

The council in my judgment were lawfully carrying out the exercise they were enjoined to do by the Court of Appeal in Dowty. They were balancing comparative and competing local community needs and were entitled to take a broad view of local needs. On the one hand there was what had been identified as a pressing community need for the expansion of the school and for the school’s exclusive use of sporting facilities during school hours to be clarified and formalised. That required on the proper Advice given to Cabinet by Officers, that the land be appropriated for those purposes. Against that there was the public interest need as assessed by the defendant in the local community continuing to have access to identified sporting and leisure facilities on the appropriated land. I can see nothing unlawful in the defendant carrying out that balancing exercise and determining that the comparative and competing public interest needs for sporting and associated recreational facilities could be met by the new arrangements comprised by the CUA and so forth, so that the land was no longer required for its current purpose as a recreation ground/PPG/open space governed by the hitherto applicable statutory regime, and as regards the small area being removed altogether from public access (the land appropriated for the first purpose) that was no longer required for open space purposes because of the overriding (in the defendant’s assessment) comparative need in the public interest to expand the school.

Nor do I consider it arguable that in carrying out that balancing exercise the defendant acted irrationally in coming to the determination it did (irrationality being at the heart of both sets of grounds being pursued by Mr Wolfe). To assist them in their decision making, the Cabinet had a full summary of the consultation responses and the benefit of the officers’ detailed comments thereon. On authority, the defendant was entitled to take a ‘broad view of local needs’. That could not sensibly demand the defendant resolve every dispute as to the level of current use of, for example, the tennis courts and/or the bowling green. The nature of the dispute, and the information underlying the dispute was clearly before the Cabinet as identified by the Officers. The defendant was entitled to take the view that it was not practicable to go further in resolving that dispute by some empirical study and was entitled to rely on the information it had been provided with by the Officers (which expressly took account of the counter submission). The defendant had nonetheless ‘to take a view’ as to whether the appropriation proposals would meet the comparative public need for such facilities. They were as local councillors well equipped to do so. I accept the point made by Mr Rutledge that the Cabinet’s decision should not be read as if it were taken in a factual vacuum, and Members were able to draw on their own knowledge and experience, (e.g. Councillor Judge as set out in the Transcript of his contribution to the debate) when assessing whether the new arrangements represented an advantage to park users over the current position (for example when compared to the hitherto contested position as to the school/public access to the tennis courts). None of the approach adopted breached in my judgment the defendant’s function identified in Dowty‘to study and keep under review the needs of the inhabitants of the locality and to exercise to the best of its ability its powers with those needs in mind’.

Similarly, given the identified comparative public interest needs which the cabinet was considering (as between the school needs and public access to recreational facilities needs) and the very small amount of external open space in fact being lost to public access, I equally consider it quite unrealistic for the claimant to contend that the determination that the land in question was no longer required for open space/recreational/PPG purposes is to be condemned as irrational absent a detailed and express evaluation of the impact of the contemplated loss of open space by reference to the available open space provision elsewhere in the locality. Again the decision was not being taken in a factual vacuum. The Cabinet must have been well aware of the value placed on the Recreational Ground as open space from the summary of the objections which was before them.

Further I do not consider it open to the claimant to seek to challenge the rationality of the balancing exercise undertaken by the defendant under section 122 by seeking to challenge the rationality of the decision that there was a pressing public interest (and therefore comparative) need to expand the School. That decision (and the Resolution putting it into effect) was not part of any challenge by these judicial review proceedings. Equally I do not consider that any irrationality can be found in the determination that the new arrangements (the CUA) provided sufficient protection to enable the assessed public interest needs to be met, notwithstanding the points (summarised above) as to the potential risk to public access represented by some of the provisions. This was a matter of fact and degree eminently for the defendant, advised by its Officers, to consider and not for this court to pass judgement upon. Moreover I note en passim that such a direct challenge to the rationality of defendant’s reliance on the CUA forms no part of the Grounds of Claim.

The one matter upon which I would have had sympathy with Mr Wolfe’s submissions would have been if I had concluded that in truth the defendant and its Cabinet in particular, had concentrated solely upon the needs of the School when making its determination under section 122. Although Mr Wolfe sought to persuade me that the ‘Transcript of the Cabinet’ deliberations should be read in this way, I do not consider it can be fairly so characterised. The way the competing needs of public access to recreational amenity on the appropriated land were to be met by the proposed arrangements following appropriation, were equally to be seen in the recorded contributions (see for example Councillor Judge: ‘so it can be said that this appropriation is necessary for the expansion of the primary school. But it can also be properly said that this appropriation will lead to significant new investment in the amenity of the recreation ground and sports facilities …’)

I did in this regard pay particular attention to the passages appearing in the Officer’s Additional Information Report placed before Cabinet on the 9^th December which was a report advising Cabinet of the further representations made by the claimant’s group. The following passages appear:

Viewed in isolation the highlighted passage might well suggest that the advice being given was that the needs of the School was the sole consideration to be taken account of when determining whether the land identified was no longer required for its current purpose. However I accept that that passage cannot be viewed in isolation. It has to be viewed in the context of the Advice previously given in the Officers’ report which I have already set out (see in particular that at paragraphs 2.35; 2.36; 2.37; 2.44). So viewed, I cannot accept that the Officers and the Cabinet were not fully aware of the requirement that they consider the competing comparative public needs for access to the identified recreational facilities on the land proposed to be appropriated.

Finally I turn to the alleged contradiction in the defendant’s reasoning that the land was no longer required for its current purpose as a recreational ground/PPG/open space. At first blush I was attracted by this argument. But again on proper analysis I consider there is nothing in the argument. The argument wrongly conflates the assessed (by the defendant) ‘needs’ of the local community and ‘the purposes’ for which land is required to be held to meet those needs. It must in my judgement be open to a Council such as the present defendant, carrying out the Dowty exercise of balancing comparative local community public interest needs when determining whether land was no longer required for its current purpose, to conclude that as one set of needs (that of the public need for access to identified recreational activities) can be satisfactorily met by new arrangements (in this instance the arrangements provided for under the CUA) those needs no longer require the land to be held for its current purpose as a recreational ground/open space/PPG governed by the hitherto applicable statutory/trust regime/trust regime, and the land should be appropriated to be used to meet also the competing comparative public interest needs of the School (including the need for exclusive use set hours, of sporting facilities).

And this is what, in my judgment, the defendant did rationally conclude in this case. There is in my view nothing flawed in the ‘Nobody Loses Out’ Determination of the defendant notwithstanding Mr Wolfe’s forceful submission to the contrary. As regards the tennis court facility for example, I consider that which appears in the defendant’s Detailed Grounds to be entirely without flaw:

I equally see nothing irrational in the defendant concluding that the need of the local community for access to the pavilion facilities no longer required the land on which it was proposed to be built (which was so intimately connected physically with the remainder of the land proposed to be appropriated), to be held for its current recreational ground/open space/PPG/purpose given the community access provided for in the CUA.

For all these reasons I reject each of the grounds of challenge pursued on behalf of the claimant and it follows this claim must be dismissed.

I should add however that had I been persuaded that there was any public law flaw in the approach adopted by the defendant in its determination under section 122, (for example in relation to the 147 square metres appropriated to provide the replacement pavilion), I would not in any event have been minded to grant any relief which is of course in the discretion of the court. The effect of any relief would undoubtedly bring to a halt a scheme for the expansion of the school which is well advanced and in respect of which as regards the other identified steps taken to facilitate the scheme, (such as the obtaining of planning permission, the removal of the restrictive covenant) considerable public resources have been spent. The court itself has to weigh the respective public interest benefits and disadvantages in deciding whether to grant relief. In this regard I was referred to the observations of (as he then was) Judge LJ in R v LB Brent ex parte Walters (1998) 30 HLR 328 at 381, in particular ‘as the grant of judicial review may have substantial adverse consequences for a large number of blameless individuals beyond the applicant himself, in an appropriate case … the exercise of discretion permits account to be taken of the conflicting interests’.

I also have had regard to the evidence of the defendant’s officer, Mr Proctor in his witness statement of April 2014 setting out the anticipated timetable for the first stages of the scheme designed to enable what are described as at least 30 urgently required additional school places to be provided in September 2014. I have to bear in mind also my ruling that it has not been open to the claimant in this judicial review claim to challenge the rationality of the proposed school expansion scheme, a scheme which was first proposed in 2010.

My considered view is that the conflicting interests between those in the position of the claimant, assuming a flawed approach to appropriation had been made out in this case, and those of the defendant’s wider local community interested in taking up the additional school places, would have to have been resolved against the claimant leading to the denial of relief.