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

Under section 122(1) of the Local Government Act 1972, whether land is no longer required for its existing purpose is principally for the local authority, subject to ordinary Wednesbury review. The authority may take a broad view of local needs and balance competing public interests. The land need not have fallen into disuse. It is sufficient that the authority rationally concludes that the existing public need can be met by new arrangements while the land is used for another authorised purpose. The court need not require an empirical survey to resolve every dispute about present use where the relevant competing evidence and representations were before the authority. A judicial review challenge cannot indirectly attack the rationality of an unchallenged underlying decision.

The claimant, chair of a local residents’ group, sought judicial review of the defendant local authority’s decision to appropriate part of Dundonald Recreation Ground under section 122(1) of the Local Government Act 1972. The land had been acquired as a public pleasure ground and was used for recreational facilities, including tennis courts, a bowling green and a pavilion.

The appropriation was intended to facilitate the enlargement of an adjacent primary school and new or shared recreational facilities. The claimant argued that the authority had asked the wrong statutory question, had failed properly to assess existing recreational use and had acted irrationally by maintaining that the facilities would remain available after appropriation. The central issue was whether the authority had lawfully concluded that the land was no longer required for the purpose for which it was held.

1. Claim dismissed. The defendant had lawfully exercised the power of appropriation under section 122(1) of the Local Government Act 1972.
2. The court applied the principles in Dowty Ltd v Wolverhampton Corporation [1976] 1 Ch 13. Whether land is no longer required means whether it is no longer needed in the public interest of the locality for its existing purpose. That is a matter for the local authority, subject to Wednesbury principles. The authority may consider relative and comparative needs, take a broad view of local needs and act without waiting for the existing use to fall into disuse.
3. The officers’ advice correctly identified the statutory preconditions. The Cabinet was entitled to understand the existing purpose as including public pleasure ground, open space and recreational use, while also considering the particular sporting facilities. It rationally balanced the need for additional school places and defined school use of the facilities against the public interest in continued recreational access.
4. The authority was not required to resolve every evidential dispute about the extent of existing tennis or bowling use by commissioning an empirical survey. The relevant competing material had been placed before the Cabinet, which was entitled to rely on the officers’ assessment and its members’ local knowledge and experience.
5. The continued public use of replacement facilities did not contradict the conclusion that the land was no longer required for the existing statutory and trust regime. The authority could conclude that the same recreational needs would be adequately met under the Community Use Agreement and the new arrangements.
6. The claimant could not challenge the rationality of the asserted need to expand the school because that decision was not itself challenged in these proceedings. The court also observed that, had a public law flaw been established, relief would have remained discretionary and the competing wider public interests would have been relevant.