Wandsworth park: high court judgement for Alexander Muir (representing friends) vs Wandsworth.

Alexander Muir told us that he had requested judicial review of the planning consent. The judge has ruled, that the owners of open space are the local residents, the council is merely the trustee, and therefore, any revenues accrued from that open space are the property of the local residents, and should not be placed in the council’s general funds but spent on that open space. Sandy really hopes his efforts will set us all a favourable precedent. I think the judgement: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1947.html (paragraph 69, 71, 82 and others)  The issue at stake was to lease substantial part of the park’s principle building [including front & back gardens] to a private nursery.

Upholding his challenge on Friday, Mrs Justice Lang said: “In my judgment the council has underestimated the constraints on its powers to develop the common.” https://www.standard.co.uk/news/london/battle-over-nursery-in-wandsworth-park-after-judge-blocks-plans-a3602081.html

Battle over nursery in London park after judge blocks … www.standard.co.uk A high court judge has blocked plans to open a private nursery in a park, in a row that has divided parents of south London’s “nappy valley”. Smart Pre-Schools

” 69. By virtue of section 10 Open Spaces Act 1906, the Council holds and administers the Common in trust “to allow, and with a view to, the enjoyment thereof by the public as an open space”. The Council is the trustee and the inhabitants of Wandsworth are the beneficiaries of the trust. In R (Beresford) v Sunderland City Council [2004] 1 AC 889, Lord Walker said, obiter, at [47]:

“….where land is vested in a local authority on a statutory trust under section 10 of the Open Spaces Act 1906, inhabitants of the locality are beneficiaries of a statutory trust of a public nature….”

71. In The Churchwardens and Overseers of Lambeth Parish v London County Council [1897] AC 625, Lord Halsbury held that the Council did not occupy Brockwell Park, they were “merely custodians and trustees for the public” and “there is no possibility of beneficial occupation to the county council; they are incapable by law of using it for any profitable purpose; they must allow the public the free and unrestricted use of it”. The mansion house and refreshment rooms remained part of the park and the same principles applied to them.

75. In the light of the observations in the Brockwell Park and Liverpool cases to the effect that the local authority, as trustee, could not lawfully make a profit from land held under the OSA 1906, the Council conceded that it could not properly use any rent paid by the IP for its general purposes; it could only be used for the purpose of improving or maintaining the Common. In its written evidence and skeleton argument in these proceedings,

the Council had stated it intended to use only 30% of any rent received from the IP for the purpose of improving and maintaining the Common, but it withdrew that statement during the hearing. Of course, I accept the Council’s point that the cost of maintaining the Common far exceeds the amount of rent payable under the proposed lease.

78. …The premises remained subject to the statutory trust, and so even though the premises were no longer needed for the groundsmen, the Council could not treat them as surplus property which it could dispose of as it saw fit.

82. Applying these principles, I consider that the headings indicate that the overall purpose and scope of Articles 7 and 8 of the 1967 Order is to enable the Council to provide and maintain recreational facilities for the public i.e. “public recreation”. Such an interpretation is consistent with the statutory trust created by section 10 OSA 1906, under which the Council is the trustee and custodian of the Common and holds it for the enjoyment and use of the inhabitants of Wandsworth, who are the beneficiaries of the trust. ]

Alexander Muir had funded this action himself to the tune of £65K and, due to the compromise of an indemnity policy [to protect him in the case of costs being awarded against him], even though he was awarded costs, will only get £35K back.  The case looks like going to appeal, and he will crowd fund it (with Crowd Justice).