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

Where land has been lawfully appropriated, byelaws governing its former recreational use cease to apply to that land. A challenge based solely on alleged powers under those byelaws therefore cannot succeed. Had the appropriation been unlawful, byelaws permitting only limited exclusivity during games would not have authorised the grant of legally exclusive use of recreational facilities to a third party. Nor would they have authorised preventing informal public use of areas not set aside for a particular sporting activity, subject to any applicable provision concerning areas unfit for use.

The claimant sought judicial review of the defendant local authority’s decision to lock entrances to a bowling green, erect notices restricting use of the bowling green and tennis courts, enter into a community use agreement with a primary school, and grant the school a licence for exclusive use of the tennis courts during school hours.

The claim was heard as a rolled-up permission hearing following an order of Lang J. It was linked to a separate claim challenging the defendant’s appropriation under Local Government Act 1972, section 122, of the land occupied by the facilities. The parties agreed that, if the appropriation challenge failed, this claim would be academic because the byelaws would no longer apply.

1. Disposition. The court refused permission. The challenge to the appropriation had failed in the related proceedings, so the present claim was academic. The defendant’s actions could no longer be challenged on the basis that they were outside powers conferred by the recreational byelaws.
2. Effect of appropriation. Lawful appropriation removed the land from the scope of the byelaws and enabled the defendant to use it for other purposes, including facilitating the expansion of the adjacent school and regulating school and community use of the tennis courts.
3. Hypothetical construction of the byelaws. Had the appropriation challenge succeeded, the court would have been minded to conclude that the byelaws did not authorise the defendant to grant legally exclusive use of any part of the recreation ground to a third party. The limited exceptions were the temporary exclusivity permitted by byelaws 13 and 14 while a game or match was in play.
4. The court would also have been minded to conclude that the byelaws did not authorise preventing informal public use of an area not, or no longer, set aside for a particular sporting activity. That conclusion was subject to the possible application of byelaw 15 concerning areas unfit for use.
5. It was unnecessary to determine the merits beyond those observations, or whether relief would have been granted, particularly in light of the effect on the school and other third parties. The school’s governing body had been notified of the amended grounds but did not wish to be joined as an interested party.

The judgment describes a rolled-up judicial review hearing ordered by Lang J on 3 April 2014, following a hearing on 28 March 2014. It was heard immediately after a related claim concerning the appropriation of the same land. No appellate history is stated.