Muir, R (On the Application Of) v Smart Pre-Schools Ltd, Court of Appeal - Civil Division, May 09, 2018, [2018] EWCA Civ 1035

Resolution Date:May 09, 2018
Issuing Organization:Civil Division
Actores:Muir, R (On the Application Of) v Smart Pre-Schools Ltd
 
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Neutral Citation Number: [2018] EWCA Civ 1035

Case No: C1/2017/2293

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE HON MRS JUSTICE LANG DBE

[2017] EWHC 1947 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 9 May 2018

Before :

LORD JUSTICE PATTEN

LORD JUSTICE FLOYD

and

LORD JUSTICE COULSON

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Between :

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Nigel Giffin QC (instructed by Sharpe Pritchard LLP) for the Appellant

Victoria Wakefield (instructed via the Bar Pro Bono Unit) for the Respondent

Hearing date: 19 April 2018

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Lord Justice Floyd :

Introduction

  1. The issue in this appeal is whether the appellant local authority (``Wandsworth'') has the necessary vires to grant a lease of premises situated on Wandsworth Common to the interested party (Smart Pre-Schools Limited) for the purposes of allowing it to operate a pre-school nursery there. Wandsworth considers that it does have the necessary vires, and accordingly decided that it would in due course grant such a lease. The respondent (``Mr Muir''), who had himself made a competing proposal for the use of the premises, applied for judicial review of Wandsworth's decision to grant the lease to the interested party. The resolution of the issue turns on the correct construction and application of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 (``the 1967 Act'', sometimes referred to as the ``Long Act'').

  2. Articles 7(1)(a)(v) and (vi) of Schedule 1 of the 1967 Act give to a local authority the power ``in any open space'' to provide and maintain: ``indoor facilities for any form of recreation whatsoever'' and ``centres and other facilities (whether indoor or open air) for use of clubs, societies or organisations whose objects or activities are wholly or mainly of a recreational, social or educational character'' respectively. Wandsworth contended before the judge, Lang J, that the interested party's proposed pre-school nursery fell within one or other or both of these descriptions. In her judgment, handed down on 28 July 2017, the judge disagreed with Wandsworth and, by her order, granted a declaration that the decision to grant the lease was unlawful. Wandsworth is dissatisfied with the judge's conclusion and appeals to this court.

  3. In the appeal, Mr Nigel Giffin QC appeared for Wandsworth and Ms Victoria Wakefield for Mr Muir. We were greatly assisted by the submissions of both counsel. In addition, we are grateful to Ms Wakefield for appearing pro bono for Mr Muir.

    The facts in more detail

  4. The relevant factual background is not in dispute. The proposed lease is in respect of premises known as Neal's Farm Lodge and Cottage situated on Wandsworth Common. The interested party is a limited company which intends to operate a day nursery at the premises for up to 62 pre-school children, aged 2 to 5 years.

  5. For many years the premises were used partly as a café (the Skylark Café) and partly to provide residential accommodation for groundsmen under residential service tenancies. Those tenancies were terminated in 2013/14 leaving the premises unoccupied (apart from the café). In January 2015 Wandsworth decided to let the premises on the open market, inviting offers for a 10-15 year lease. Their advertisement provided that ``any use must provide a recreational or educational facility servicing the Common''. Ten expressions of interest were received and the interested party was the highest bidder. The estate agents described the interested party as ``an established nursery and nanny provider''. Wandsworth accordingly decided to lease the premises to the interested party. The tenth expression of interest had come from Mr Muir who proposed an educational and recreational facility to be used by local maintained schools.

  6. The interested party subsequently applied for planning permission, which was granted subject to a number of conditions. These included a restriction on the number of children enrolled at the nursery to a maximum of 62; a restriction on the hours of opening to ``customers'' to between 08.00 and 18.00 excluding weekends and bank holidays; and a restriction on the use of the premises to a nursery or preschool and for no other purpose.

  7. The present claim for judicial review was commenced on 24 May 2016. Pending the outcome of these proceedings Wandsworth decided not to complete the grant of the lease to the interested party, but there is a draft in evidence before us. The draft lease contained the following covenants by the interested party:

    ``2.16(i) To use the demised premises only for the purposes of a nursery and/or pre-school whose objects or activities are wholly or mainly of a recreational, social or educational character within the requirements of the [1967 Act] (``the Permitted Use'')

    (ii) Not to use the demised premises before 7.00am or after 8.00pm but otherwise to keep the demised premises open for business during normal business hours for a nursery and/or pre-school taking into account normal school holidays and any other periods of ordinary closure

    (iii) To provide early education places reflecting the Council's policies relating to section 7 of the Childcare Act 2006 (or such replacement or alternative scheme) as reasonably required by the Council from time to time

    (iv) Not to make unreasonable charges for its services provided in accordance with the permitted use

    (v) To comply with the admission policy annexed hereto or as varied in agreement with the Council.''

    Legislation

  8. Section 87(3) of the Local Government Act 1963 (``the 1963 Act'') gave the Minister of Housing and Local Government power to amend, revoke, repeal or extend any Greater London statutory provision by order, for the purposes of securing uniformity. The provisions with which this appeal is concerned were originally contained in the ``Greater London Provisional Order For Securing Uniformity In The Law Applicable With Respect To Parks And Open Space'' (``the Greater London Provisional Order'') which was made pursuant to the powers in section 87(3) of the 1963 Act. The 1967 Act confirmed the terms of the Greater London Provisional Order, enacting it as Schedule 1 to the Act. Article 1 states that ``This order may be cited as the Greater London Parks and Open Spaces Order 1967'', and I shall refer to it as the 1967 Order.

  9. The term "open space" is defined in Article 6 of the 1967 Order to include:

    ...any public park, heath, common, recreation ground, pleasure ground, garden, walk, ornamental enclosure or disused burial ground under the...

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